1.
Ulpianus, Rules, Book I.
The duties of him who has the right of dispensing justice
are very extensive; for he can grant the possession of estates, place
the parties in possession, appoint guardians for minors who have none,
and designate judges for litigants.
2. Javolenus, On Cassius, Book VI.
He to whom legal jurisdiction is given is also held to be
invested with all the powers necessary for its exercise.
3. Ulpianus, On the Duties of Quaestor, Book II.
Official authority is either simple or mixed. Simple authority
invests the magistrate with the right of inflicting the death penalty
upon persons who are violators of the law, which is also designated
"power". Mixed authority, which embraces legal jurisdiction,
consists of the right of granting possession of property. Jurisdiction
includes the power of appointing a judge.
4. The Same, On the Edict, Book I.
The right to order a bond to be executed by a praetorian
stipulation, and to place a party in possession, rather belong to
authority than to jurisdiction.
5. Julianus, Digest, Book I.
It was established by the custom of our ancestors that he
only can delegate jurisdiction who possesses it in his own right,
and not through delegation by another.
6. Paulus, On the Edict, Book II.
And this is because jurisdiction is not given to him in the
first place, and has not been conferred upon him by law, which only
confirms that which has already been delegated; and therefore, if
anyone who has delegated his jurisdiction should die before the business
over which jurisdiction has been delegated to him had begun to be
transacted; Labeo says that the delegated authority is abrogated,
just as it is in other cases.
7. Ulpianus, On the Edict, Book III.
"If a person maliciously destroys a notice which has
been entered in the register of an official, or written on papyrus,
or any other substance, and which has reference to the general jurisdiction
of the said official and not to any special matter; judgment should
be rendered against him for fifty aurei, and anyone may bring
suit for the same."
(1) Slaves and sons of families also are affected by the
terms of this edict; and the Praetor includes both sexes.
(2) If anyone should cause this damage before the notice
has been published or while it is being published, the words of the
Edict will be without effect; but Pomponius holds that the principle
of the Edict is applicable to such a case.
(3) If the offence has been committed by slaves who are not
defended by their masters, or by persons who are in poverty, corporeal
punishment shall be inflicted.
(4) Malice is mentioned in the words of the Edict, because
if anyone should commit such an act through ignorance or stupidity,
or by the order of the Praetor himself, or through accident, he will
not be liable.
(5) He who removes the document, even though he may not destroy
it, is also liable under this Edict which includes both him who performs
the act himself and him who orders another to perform it; but if anyone
performs it without malice by the direction of another who was actuated
by malice, the latter will be liable; and if both of them act maliciously
both will be liable; and if several persons commit the act, whether
they destroy documents, or order this to be done, all will be liable.
8. Gaius, On the Provincial Edict, Book I.
And this applies to such an extent that it will not be sufficient
for only one of them to pay the penalty.
9. Paulus, On the Edict, Book III.
If the entire body of slaves belonging to anyone should deface
a register, the Edict does not treat this offence as it would a case
of theft, where the master who wishes to defend the action pays as
much in the name of one slave as a freeman would be compelled to pay,
for then no action will lie against the others; the reason for which
is perhaps that, in this instance, the offended dignity of the Praetor
must be vindicated, and several acts are understood to have been committed;
in the same manner as when several slaves have perpetrated a wrong,
or have caused damage, because several acts have taken place, and
not merely one, as in the case of theft. Octavenus
says that in this instance relief ought to be granted to the master,
but this can only be maintained where the slave maliciously brings
it about that the register shall be destroyed by another, because
then there is only one conspiracy, and not several acts. Pomponius
states the same thing in the Tenth Book.
10. Ulpianus, On the Edict, Book III.
He who presides over the administration of justice ought
not to render judgment in his own case, or in that of his wife or
children, or of his freedmen, or of any others whom he has with him.
11. Gaius, On the Provincial Edict, Book I.
Where one person brings several actions against another and
the amounts of the different claims demanded therein, if taken separately,
are within the jurisdiction of the judge, but the
entire sum exceeds it, it was the opinion of Sabinus, Cassius, and
Proculus that the actions could be tried before him; and this opinion
was confirmed by a Rescript of the Emperor Antoninus.
(1) Where, however, the rights of actions are reciprocal
in their character, and one party claims an amount under the limit,
and another one over it, he who claims the smaller sum can proceed
before the same judge; so that it may not be in the power of my adversary,
if he wishes to annoy me, to prevent me from trying the case before
the same judge.
(2) Where an action is brought by a number of persons at
the same time, as for instance for the partition of an estate, the
division of common property, or the establishment of boundaries, should
we in • order to ascertain the jurisdiction of the judge who has cognizance
of the case, consider the value of the separate shares, which is the
opinion of Ofilius and Proculus for the reason that each party is
bringing suit for his own share; or should the entire value of the
property rather be considered because the whole of it is in court
and may perhaps be adjudged to one person? This is the opinion of
both Cassius and Pegasus, and in fact it seems the more reasonable
one.
12. Ulpianus, On the Edict, Book XVIII.
Municipal magistrates have no authority to inflict severe
punishment upon a slave; the right of moderate castigation cannot,
however, be denied them.
13. The Same, On Sabinus, Book LI.
He who orders anyone to act as judge must be a magistrate.
(1) A magistrate, or he who is invested with any authority,
(as for instance, a Proconsul, a Praetor, or any other official who
governs a province) cannot appoint a judge on the day on which he
becomes a private person.
14. The Same, On the Edict, Book XXXIX.
It is an accepted rule which we make use of in law, that
if anyone of higher, or of equal rank, submits himself to the jurisdiction
of another, the latter can administer justice for and against him.
15. The Same, On All Tribunals, Book II.
If, through error, anyone appears before one Praetor while
intending to appear before another, none of the proceedings which
have been instituted will be valid, for no one is permitted to say
that they agreed upon the judge; since, as Julianus stated, those
who are in error do not agree. For what is so contrary to agreement
as error, which always reveals ignorance?
16. The Same, On All Tribunals, Book III.
The Praetor is accustomed to delegate his jurisdiction, and
either delegate all or a portion of the same; while he to whom the
right of dispensing justice has been delegated, exercises it in the
name of him who appointed him, and not in his own.
17. The Same, Opinions, Book I.
As the Praetor can delegate his entire jurisdiction to one
person, he can also delegate it to several, or he can do this with
reference to a particular case; and especially where he has a good
reason, for example, because he appeared as the advocate of one of
the parties before becoming a magistrate.
18. Africanus, Questions, Book VII.
If it is agreed upon by the parties that another Praetor
than the one who had jurisdiction of the case should hear it, and
before applying to him one of them should change his mind, there is
no doubt that he cannot be compelled to abide by an agreement of this
kind.
19. Ulpianus, Trusts, Book VI.
In a case where an unmarried woman had undertaken a defence
before a competent judge and was defeated, and afterwards married
a man who was subject to a different jurisdiction, the question arose
whether the judgment of the former court could be executed? I have
said that it could, because judgment had been rendered before her
marriage; but if this had occurred after the judge had taken cognizance
of the case, and before judgment, I hold the same opinion, namely
that the decision of the first judge was properly rendered. This rule
should be observed generally in all cases of this description.
(1) When the amount is made the subject of inquiry with reference
to jurisdiction, the sum claimed must always be considered, and not
that which is due.
20. Paulus, On the Edict, Book I.
A judge who administers justice beyond his jurisdiction may
be disobeyed with impunity. The same rule applies if he wishes to
dispense justice where the amount is beyond his jurisdiction.
Tit. 2. Each one
must himself use the law which he as established for others.
1. Ulpianus, On the Edict, Book III.
The Edict is characterized by the greatest equity and is
without just cause of complaint by anyone, for who will refuse to
be judged by the same law which he himself applied, or caused to be
applied to others?
(1) "If anyone invested with magistracy, or other authority
has established a new rule against any party, he must himself be judged
by the same, when his adversary demands it. Where anyone has obtained
the application of a new law before an official invested with magistracy,
or other authority, and subsequently some adversary of his demands
it, he shall have his case decided against him by the same law;
that is to say, that whatever anyone thinks to be just with reference
to another party he must suffer to prevail against himself as well."
(2) Moreover, these words, "What he who administers
justice has established", we must accept according to the effect,
and not according to the words; and therefore if anyone wishes to
render a decision and is prevented from doing so, and his decision
should not have any effect, the Edict does not apply, for the word
"established" denotes something which has been perfected,
a wrong which has been consummated and not merely begun; and therefore
if anyone administers justice between parties over whom he has no
jurisdiction, since the proceedings are void and his judgment has
no force, We think that the Edict does not apply; for what does an
attempt amount to when no injury resulted?
2. Paulus, On the Edict, Book III.
The malice of the presiding judge is punished by this Edict;
for, if through the ignorance of an assessor the law was interpreted
in a different manner than it should have been, this should not affect
the magistrate, but the assessor himself.
3. Ulpianus, On the Edict, Book III.
When anyone has obtained an unjust decision against another,
the same rule shall be applied to the party alone, where this took
place on his own motion; but if he did not ask for it, it cannot be
enforced against him. But where he obtained it, whether he made use
of any rule or merely had permission to avail himself of it, but did
not do so, he will be punished under this Edict.
(1) If my procurator made this unjust demand, the question
arises to whom this same rule should be applied. Pomponius thinks
to me alone, that is if I delegated my authority to him for an especial
purpose, or ratified it. Where, however, the guardian or curator of
an insane person or of a minor makes such a demand, he himself shall
be punished by this Edict. The same rule shall be observed against
the procurator if he was appointed in a matter in which he was interested.
(2) This penalty is incurred by all who are included in the
provisions of the Edict, not only by the petitioner who was injured
by him, but by every one whomsoever who institutes proceedings at
any time.
(3) If anyone for whom you are surety has obtained an order
of court prohibiting any debtor from filing an exception against him,
and you wish to file one in the matter in which you become surety;
neither he nor you should obtain the same; although in the meantime
you may suffer injury if your debtor is not solvent. But if you yourself
come under the terms of the Edict, the principal debtor may plead
the exception, but you cannot do so; and the penalty to which you
are liable will not affect him, and hence you will have no right of
action on mandate against him.
(4) If my son, while a magistrate, should come within the
terms of this Edict, will the Edict be applicable in any actions which
I may bring in his behalf? I do not think so, as otherwise my condition
will become worse on his account.
(5) When the Praetor says: "He must be judged by the
same rule", is this penalty transmitted to the heir? Julianus
stated that the action should not only be refused to him, but also
to his heir.
(6) He also stated, and not without reason, that he was liable
to the penalty of the Edict, not only with reference to rights of
action in which he was involved when he came within the terms of the
Edict, but also with reference to all those which were acquired for
him subsequently.
(7) Julianus thinks that money already paid under such circumstances
cannot be recovered, as there was still ground for payment under natural
law, which prohibits recovery.
4. Gaius, On the Provincial Edict, Book I.
The Praetor very properly and justly inserted this exception:
"Unless one of the parties has acted unjustly against some one
who himself had acted in the same way against another." And,
indeed, where a magistrate desires to sustain the Edict, or a litigant
wishes to obtain the benefit of it, he might render himself liable
and incur the penalty prescribed by the Edict.
Tit. 3. Where
anyone refuses obedience to a magistrate rendering judgment.
1. Ulpianus, On the Edict, Book I.
It is permitted to all magistrates, with the exception only
of Duumviri, to protect their administration by means of penalties
in accordance with their official rights.
(1) He is presumed to refuse obedience to a magistrate having
jurisdiction, who declines to execute what has finally been determined;
as for example, where he will not allow someone to remove personal
property from his possession, but permits it to be taken or carried
away; and if he opposes the subsequent proceedings, it is then considered
that he does not obey.
(2) If an agent, guardian, or curator refuses to obey a magistrate,
he himself is punished, and not the principal or the ward.
(3) Labeo says that not only the defendant, but also the
plaintiff, if he does not obey, is liable under this Edict.
(4) This suit is not for a sum which corresponds to the interest
of the party who brings it, but is limited to the amount of damages
sustained; and as it includes a mere penalty it is extinguished after
the lapse of a year, and does not lie against the heir.
Tit. 4. Concerning
citations before a court of justice.
1. Paulus, On the Edict, Book IV.
To cite anyone before a court of justice is to summon him
for the purpose of trying a case.
2. Ulpianus, On the Edict, Book V.
Neither a Consul, a Prefect, a Proconsul, nor any other magistrate
who exercises authority, and has the power of restraining others and
ordering them to be confined in prison, can be summoned to court;
nor can a pontiff be summoned while performing a religious ceremony;
nor can those be summoned either, who on account of the sacred character
of the place cannot leave it; nor anyone employed in the service of
the State who is riding along the public highway upon a horse belonging
to the government. Moreover, a man cannot be summoned
who is being married, nor can the woman to whom he is being united,
nor a judge while in the exercise of his judicial functions, nor any
person who is trying his own case before the Praetor, nor anyone while
conducting the funeral rites of a member of his household.
3. Callistratus, Judicial Inquiries, Book I.
Nor can those who are attending a funeral be summoned, which
appears to be established by a Rescript of the Divine Brothers.
4. Ulpianus, On the Edict, Book V.
The same rule applies to those who are obliged to be present
in court in some certain place for the purpose of litigation, as well
as to insane persons, and infants.
(1) The Praetor says: "That no one without my permission
can summon to court his parents, his patron or patroness, or the children
or parents of his patron or patroness".
(2) By the word "parent" one must here understand
those of both sexes. The question, however, arises whether this term
may be indefinitely extended? Some hold that it only applies as far
back as the great-great-grandfather, and that other ascendants are
called "ancestors". Pomponius stated that this was the opinion
of the ancient authorities; but Gaius Cassius says that the term applies
to all ascendants without exception; which makes it more honorable,
and this rule has very justly been adopted.
(3) Labeo held that those also should be considered parents
who have become such in slavery, and not, as Severus said, that the
term should only apply to instances where children are legitimate;
so that where a son has been begotten in promiscuous intercourse,
he cannot bring his mother into court.
5. Paulus, On the Edict, Book IV.
This is for the reason that the mother is always certain,
although she may have been given to promiscuous intercourse; but the
father is he whom the marriage indicates as such.
6. The Same, Sentences, Book I.
No one can cite his natural parents into court, for the same
reverence must be preserved for all parents.
7. The Same, On the Edict, Book IV.
A man can summon with impunity the parents of his adoptive
father, as they are not really his parents, since he is only cognate
to those to whom he is also agnate.
8. Ulpianus, On the Edict, Book V.
A man cannot summon his adoptive father to court as long
as he is under his control, which results rather from the right of
paternal authority than from the order of the Praetor; unless the
son has castrense peculium, and in this instance he can be
permitted to do so where proper cause is shown, but he cannot summon
his natural father while he is a member of an adoptive family.
(1) The Edict mentions the "patron" or the "patroness".
Those are to be considered patrons who have manumitted a slave, or
who have detected collusion; as for instance, where someone in a preliminary
judicial proceeding had been declared to be a freedman, when in fact
he was not; or where I have sworn that the party in question is my
freedman; just as, on the other hand, I am not to be considered a
patron if judgment is rendered against me; or where, if I tender the
oath, the party swears that he is not my freedman.
(2) If, however, I have compelled my freedman or freedwoman
to swear not to marry, I can be brought into court; and Celsus indeed
says that no right over such a freedman passes to my son during my
lifetime. Julianus, however, holds the contrary,
and many adopt his opinion; so that in an instance of this kind it
may happen that a patron can be summoned, but his son, being innocent,
cannot be.
9. Paulus, On the Edict, Book IV.
He, also, who has manumitted a slave under the terms of a
trust cannot be brought into court, although he may be summoned to
force him to manumit a slave.
10. Ulpianus, On the Edict, Book V.
If, under this rule, I purchase a slave upon the condition
that I will manumit him, and he obtains his liberty by the Constitution
of the Divine Marcus, I cannot be cited, as I am his patron; but if
I purchase him with his own money, and have broken faith with him,
I shall not be considered his patron.
(1) Where a female slave is forced to prostitute herself
against the condition of her sale, she will have the vendor as her
patron if she was sold under the condition that, "She would become
free if she were forced to prostitute herself". But if the vendor,
who reserved the right to take possession of her by seizing her, himself
prostitutes her, since she still obtains her freedom, she does so
through him who sold her, but it is not proper that any honor should
be shown him, as Marcellus holds in the Sixth Book of the Digest.
(2) We also consider a man a patron, even though he may have
forfeited his civil rights, or where his freedman has lost his; as
for instance where arrogation took place in a clandestine manner,
since, as he must have concealed his status from him by whom he was
arrogated, his act does not seem to be such as to entitle him to be
considered freeborn.
(3) If, however, he has acquired the right of wearing gold
rings, I think he should never fail to manifest respect for his patron,
even though he may be qualified to exercise all the functions of a
freeborn person. The case is different if he is restored to all the
privileges of birth, for the Emperor can make a man free born.
(4) Anyone who is manumitted by an organized body, a corporation,
or a city, can summon any member of the same to court, for he is not
the freedman of any of them in particular. He must, however, show
respect to all collectively; and if he wishes to bring an action against
a municipality or a corporation, he must ask permission to do so under
the Edict, although he may intend to summon one who has been appointed
the agent of the others.
(5) By the terms "the children and parents of the patron
and patroness", we must understand persons of both sexes.
(6) Where a patron has been reduced to the condition of a
foreigner through the penalty of deportation, Pomponius is of the
opinion that his privilege is forfeited; but if he should be reinstated,
he will again enjoy the benefit of the Edict.
(7) The adoptive parents of a patron are also excepted, but
only so long as the adoption lasts.
(8) If my son has been given in adoption, he cannot be brought
into court by my freedman; nor can my grandson, who is born in an
adoptive family. But where my emancipated son adopts a son, a grandson
of this kind can be summoned, for he is a stranger to me.
(9) According to Cassius, we. may understand that the term
"children", like that of "parents", extends beyond
the great-great-grandson.
(10) If a freedwoman has a child by her patron, neither she
nor her son can bring the other into court.
(11) If the children of a patron have brought a capital accusation
against a freedman of their father, or have claimed him as a slave,
no honor is due to them.
(12) The Praetor says that, "No one can summon them
without my permission". It is permitted, however, if the action
brought against the patron or his parents is not one involving infamy
or shame, for in every instance good cause should be established;
as sometimes in an action involving infamy, as Pedius holds, a freedman
ought to be allowed to summon his patron, if he has done the former
a serious injury; for example, scourged him.
(13) This respect should always be shown to a patron, even
if he appears as the guardian, curator, defender, or agent of another;
but where the guardian or curator is interested, he can be summoned
with impunity, as Pomponius says, and this opinion is the better one.
11. Paulus, On the Edict, Book IV.
Although the Praetor does not state that he will render judgment
for a penalty where proper cause is shown, still Labeo says that his
authority must be exercised with moderation; as for instance, if the
freedman changes his mind and abandons his suit; or if the patron
having been summoned does not appear; or if he has been summoned with
his own consent; even though the terms of the Edict do not concede
this.
12. Ulpianus, On the Edict, Book LVII.
If a freedman, in opposition to the Edict of the Praetor,
should summon to court the son of his patron whom the patron himself
has under his control, it should be held that, if the father is absent,
relief should be granted to his son who is under his control, and
that a penal action, that is to say one for fifty aurei, will
lie against the freedman.
13. Modestinus, Pandects, Book X.
As, generally speaking, we cannot summon persons to whom
respect should be shown, without an order of the Praetor.
14. Papinianus, Opinions, Book I.
Where a freedman is accused by his patron, and he, being
ready to defend himself, has frequently urged the Governor of the
province to hear his case; it is not considered that, by so doing,
he has summoned his patron who accused him.
15. Paulus, Questions, Book I.
A freedman presented a petition against his patron without
concealing the fact that he was his freedman; and the question arose
whether, if he obtained an Imperial Rescript in accordance with his
wishes, the penalty of the Edict would be remitted? I have answered
that I do not think that the Edict of the Praetor is applicable in
this instance, for the reason that he who presents a petition to the
Emperor or to a Governor, is not considered to have summoned his patron
to court.
16. The Same, Opinions, Book II.
The question has arisen whether a guardian can, in the name
of his ward, summon his patroness, without the permission of the Praetor?
I have answered the question by stating that he can summon his patroness
in the name of his ward, without the Praetor's consent.
17. The Same, Sentences, Book I.
Where anyone has given a bond in court for the appearance
of another he is obliged to produce him. Again, where he has promised
in an instrument which has been recorded that he will produce the
party in question, even though he may not have given a bond in court,
he will, nevertheless, be forced to produce him.
18. Gaius, On the Law of the Twelve Tables, Book I.
Many authorities have held that it was not lawful to summon
anyone to court from his own house; because the house of every individual
should be for him a perfectly secure refuge and shelter, and that
he who summons a person therefrom, must be considered as having employed
violence.
19. Paulus, On the Edict, Book I.
It is certain that a party is sufficiently punished if he
does not defend his case, and keeps himself concealed, for the reason
that his adversary is placed in possession of his property. But Julianus
says that if he shows himself, or appears in public, he can be legally
summoned.
20. Gaius, On the Law of the Twelve Tables, Book I.
There is no doubt that a man can be lawfully summoned from
his vineyard, the bath, or the theatre.
21. Paulus, On the Edict, Book I.
Although a man who is in his own house may sometimes be summoned
to court, still, no one should be forcibly removed from his residence.
22. Gaius, On the Law of the Twelve Tables, Book I.
It is not permitted to summon girls who have not arrived
at puberty, and who are subject to the control of another.
(1) A man who is summoned should be dismissed in two instances;
first, when anyone undertakes his defence; and second, when the controversy
has been settled before the parties have come into court.
23. Marcianus, Institutes, Book III.
Where a freedman is common, that is to say, has several patrons,
he should petition the Praetor to permit him to summon anyone of his
patrons, or he will be liable under the Praetorian Edict.
24. Ulpianus, On the Edict, Book V.
An action for fifty aurei can be brought against him
who violates these provisions, but it cannot be brought for, or against
an heir, nor after a year has elapsed.
25. Modestinus, On Punishments, Book I.
Where a freedman has summoned his patron to court without
permission being granted under the Edict, on complaint of the patron
he will be liable for the above-mentioned penalty, that is to say,
for fifty aurei; or he may be chastised by the Prefect of the
City, as lacking in respect, if it is ascertained that he has no property.
Tit. 5. Where anyone
who is summoned does not appear, and where anyone summoned a person
whom, according to the edict, he should not have summoned.
1. Ulpianus, On the Edict, Book I.
Where anyone who is summoned, gives as a surety for his appearance
in court a person not subject to the jurisdiction of the magistrate
before whom he himself is summoned; such a surety is held not to have
been given, unless he especially renounces his privilege.
2. Paulus, On the Edict, Book I.
Anyone who is summoned before the Praetor or any other judicial
officer in any matter whatsoever, should appear, in order that it
may be ascertained whether the magistrate has jurisdiction or not.
(1) Where anyone who has been summoned does not appear, he
shall be sentenced to pay a fine in proportion to the authority of
the magistrate, where proper cause exists; but allowance must be made
for men's ignorance. Again, if the plaintiff has no interest in his
adversary appearing in court at that particular time, the Praetor
can remit the penalty; for example, because the day was a holiday.
3. Ulpianus, On Sabinus, Book XLVII.
Where anyone has promised to appear in court but does not
mention the penalty to which he will be liable if he should not appear,
it is certain that suit can be brought against him for a sum equal
to the plaintiff's interest; and this Celsus also stated.
Tit. 6. Persons
who are summoned must either appear, or give bond or security to do
so.
1. Paulus, On the Edict, Book I.
It is provided by the Edict, "That where a surety is
given that a party will appear in court, the property of the former
must be ample, the position of the defendant being taken into consideration,
except where the two are closely related, for then it directs that
anyone can be accepted"; as, for instance, where a party is offered
as surety for his parent or patron.
2. Callistratus, On the Monitory Edict, Book I.
The same rule applies to the patroness, or to the children,
the wife, or the daughter-in-law of the patron; for anyone of these
persons can give a surety who must be accepted; and where the plaintiff
refuses to accept him, being aware that the parties are nearly related,
an action for fifty aurei will lie.
3. Paulus, On the Edict, Book IV.
The reason for this is, that where persons are nearly related,
any surety is accepted as being sufficiently solvent.
4. Ulpianus, On the Edict, Book LVIII.
Where anyone promises to produce two persons in court, and
he produces one and not the other, he is held not to have kept his
promise, as one of them has not been produced.
Tit. 7. No one
can forcibly remove a person who has been summoned to court.
1. Ulpianus, On the Edict, Book V.
The Praetor published this Edict to restrain by the fear
of punishment those who rescue by violence persons who have been summoned
to court.
(1) And then Pomponius has stated that where a slave commits
an offence, a noxal action should be granted unless he committed it
with the knowledge of his master; for in this instance the master
must defend the action without being permitted to surrender the slave.
(2) Ofilius is of the opinion that the provisions of the
Edict do not apply where the person summoned to court is exempt; as
for example, a father, a patron, and the other persons above enumerated.
This opinion seems to me to be correct; for, indeed, if he who summoned
him was guilty of an illegal act, he who liberated him was not.
2. Paulus, On the Edict, Book IV.
For although both parties, the freedman who summoned his
patron, and he who liberated him by force, violated the Edict, the
condition of the freedman is made worse; because, in an action of
this kind he takes the part of plaintiff. The same equitable reason
applies to a party who is summoned to a place other than the one to
which he should have been summoned. It can, however, be stated more
positively that he who had the right to refuse to appear is not held
to have been liberated by force.
3. Ulpianus, On the Edict, Book V.
When anyone rescues a slave who has been summoned to court,
Pedius thinks that the Edict is not applicable; since the slave is
not a person who can be summoned. What then shall be done? Proceedings
must be instituted to produce him.
(1) Where anyone liberates a party summoned before a judge
of inferior jurisdiction the penalty of the Edict shall not be imposed.
(2) Where the Praetor states "He released him by force";
does this mean that the act was committed merely with violence, or
with malice also? It is sufficient if the act be perpetrated with
violence, even though malice does not exist.
4. Paulus, On the Edict, Book IV.
The term "liberate" is one of general application,
as Pomponius says for to "carry off" is to remove by seizure
with the hands; but to "liberate" can be done in any way
whatsoever; as for example, if anyone does not remove a party by force,
but causes delay to prevent him appearing in court, so that the day
set for bringing the action goes by, or the property in question is
lost by lapse of time, he is held to have liberated him; even though
he did not do so bodily. But, if he retained him in some place, and
did not abduct him, he is liable under the provisions of the Edict.
(1) Again, if anyone liberates a party who has been summoned
for the purpose of annoyance, he is considered to be liable under
the Edict.
(2) The Praetor says: "He must not act maliciously to
enable him to be released"; for this can be done without malice
when there is good cause for liberation.
5. Ulpianus, On the Edict, Book V.
Where anyone has effected a rescue through the agency of
another, he is liable under this clause, whether he was present or
absent.
(1) An action is granted against anyone who has liberated
a party by force, and the amount of damages is not based upon what
was actually lost, but the value of the property in dispute is fixed
by the plaintiff; and this provision was added, so that it might be
apparent that if he brought action without proper grounds, he could
still recover this penalty.
(2) The plaintiff must also show that the rescue which was
made prevented the defendant from appearing in court, but if he was
nevertheless produced, the penalty cannot be imposed, since the words
are only applicable where some act was performed.
(3) The action is in factum, and is of such a character
that where several have committed a wrong it can be brought against
each one of them; and the party who was liberated will still remain
liable.
(4) The right of action is also granted to heirs if they
have any interest in making use of it; it is, however, not granted
against an heir, or after the expiration of a year.
6. The Same, On the Edict, Book XXXV.
If he who has released a debtor by force makes payment, he
does not exempt the latter from liability, because he pays the penalty
of his own act.
Tit. 8. What
persons are compelled to give a surety, and who can make a promise
under oath, or be bound by a mere promise.
1. Gaius, On the Provincial Edict, Book V.
The term "to give a surety" is derived from the
same origin as to furnish security, for as "to satisfy"
is said of him whose wish we comply with, so "to give security"
has reference to our adversary when he provides for what is desired
by us, and when under this name we make him secure by giving sureties.
2. Ulpianus, On the Edict, Book V.
The surety offered for the appearance of a party in court
is considered to be a man of property, not only on account of his
means, but also with reference to the ease with which he may be sued.
(1) When anyone gives a surety for his appearance in court
to a person who is not capable of bringing an action, the giving of
the surety is of no effect.
(2) The Praetor says: "Where anyone summons to court
his father, his patron, his patroness, the children or parents of
his patron or patroness, or his own children, or anyone whom he may
have under his control, or his wife, or his daughter-in-law, any surety
whosoever for their appearance in court shall be accepted".
(3) Where the Praetor says: "or his own children";
we understand that those are meant who are descended from the female
sex; and we extend this privilege also to the father, not only when
he is his own master, but also when he is under anyone's control;
and this Pomponius also stated. A son can be given as a surety by
his father, even though he may be under the control of someone else.
By "daughter-in-law" we must also understand granddaughter-in-law,
and so on, for succeeding generations.
(4) Where the Praetor says: "Any surety whosoever shall
be accepted", this merely relates to his financial resources,
that is to say, even if he is not wealthy.
(5) When the Praetor grants an action against a surety who
promised that a party would appear in court, he does so for the amount
of the property in question. But whether this has reference to the
actual value of the article, or a definite sum, is something which
we must examine. It is the better opinion that a surety is liable
for the actual value, unless he became bound for a certain sum.
3. Gaius, On the Provincial Edict, Book I.
Whether the action is for double, triple, or fourfold damages,
we hold that one and the same surety is liable for the entire amount,
for the reason that the property is understood to be worth that much.
4. Paulus, On the Edict, Book IV.
If the party who gave a surety for his appearance in court
should die, the Praetor ought not order him to be produced. Still,
if he should ignorantly order this to be done, or if the party should
die after his order, and before the day set for his appearance, no
action can be permitted. If he died after the day set for his appearance,
or loses his right of citizenship, a suit can legally be brought against
him.
5. Gaius, On the Provincial Edict, Book I.
Where anyone becomes the surety for a party who has already
been condemned, and afterwards died, or has lost his Roman citizenship,
an action can, nevertheless, properly be brought against the surety.
(1) When anyone refuses to accept a sufficient surety for
the appearance of another in court, who, it is perfectly evident,
is solvent; or if there is any doubt on this point and he is proved
to be solvent, an action for injury can be brought against him; for,
indeed, it is not an ordinary wrong for a man to be brought into court
who can furnish a perfectly solvent surety. The surety who was not
accepted can also bring suit for the injury done to himself.
6. Paulus, On the Edict, Book XII.
Where a bond or an undertaking is given, which is defective,
it is held that it is no bond at all.
7. Ulpianus, On the Edict, Book XIV.
If the solvency of the surety is not denied, it should be
said that he has the privilege of objecting to the jurisdiction of
the court, and as the plaintiff may fear that he will make use of
his right; we must ascertain what the law is. The Divine Pius, (as
Pomponius states in his Book of Epistles, Marcellus in the Third Book
of the Digest, and Papinianus in the Third Book of the Questions),
set forth in a rescript to Cornelius Proculus, that the plaintiff
might justly reject such a surety, but that if he was unable to find
any other, he could warn him not to use his privilege, if suit was
brought.
(1) When security is required, and the defendant cannot readily
obtain it where the action is brought, he can be heard, if he is ready
to give security in another city of the same province. Where, however,
the security is voluntary, he cannot have recourse elsewhere; for
he who has imposed upon himself the necessity for security does not
deserve such consideration.
(2) Where security has not been given, and the property for
which it is required is personal, and the party is liable to suspicion;
the article should be deposited in court if the judge approves of
this, or security is furnished, or the suit is brought to an end.
8. Paulus, On the Edict, Book XIV.
It is customary for litigants to agree upon the day mentioned
in the stipulation, and if this is not done, Pedius thinks that it
is in the power of the stipulator to appoint a reasonable time to
be determined by the judge.
(1) Where anyone offers a woman as a surety, he is not held
to have given a sufficient one; nor can a soldier, or a minor under
twenty-five years of age be accepted, unless these persons act as
sureties for themselves; as, for instance, where they act as their
own agents. Some authorities indeed, think that where dotal land is
claimed by a husband, the wife can become a surety on her own account.
(2) Where a person who, before judgment was rendered, offered
himself as surety that it would be paid, is ascertained to be a slave;
the plaintiff is entitled to relief and a new bond must be executed.
The same consideration must be shown to a minor under twenty-five
years of age, and probably to a woman, on account of her inexperience.
(3) If the surety for the payment of the judgment becomes
the heir of the stipulator, or the stipulator that of the surety,
a new bond must be executed.
(4) Guardians and curators who are obliged to give security
for the property of their wards, must be sent before the municipal
magistrates, because the security is necessary. The same rule applies
where property, the usufruct in which has been created, is to be restored
to the owner; and also to the case of a legatee, who must give security
that, "If he is evicted from the estate, he will restore the
legacies and whatever excess he may have received, under the Falcidian
Law". The heir also has a right to be heard in a case where he
is sent before a municipal magistrate for the purpose of giving security
to legatees. It is clear that the heir, if through his own fault a
legatee has already been placed in possession and has failed to provide
security, petitions for the legatee to surrender possession, stating
that he is ready to give security in a municipal town, he shall not
be permitted to do so. The case is different, however, if the legatee
had already been placed in possession without the negligence or fraud
of the heir.
(5) A party is ordered to swear that he is not actuated by
feelings of malevolence when he summons his adversary to a municipal
town, for fear that perhaps he may have the intention of annoying
him when it is possible for him to give security at Rome. Some persons,
however, are excused from taking this oath, as for instance, parents
and patrons. He, however, who is sent before the municipal magistrates
must swear: "that he cannot give security at Rome, and that he
can do so in the place where he asks to be sent, and that he does
not do this for the purpose of annoying his adversary". He cannot
be compelled to swear, "that he is not able to give security
elsewhere than in that place", because if he can not obtain security
at Rome and can do so in several other places, he will be forced to
perjure himself.
(6) This permission then can be obtained when just cause
seems to exist, but what course should be pursued if the party previously
refused to give security in the municipal town? In this instance he
ought not to obtain permission, since it was his own fault that he
did not give security in the place where he now desires to go.
9. Gaius, On the Provincial Edict, Book V.
Where an arbiter is appointed for the examination of sureties
and his award appears to be unjust to either party, an appeal can
be taken from it, just as it can be done from the decision of a judge.
10. Paulus, On the Edict, Book LXXV.
If the sureties are declared to be sufficient by the arbiter,
they must be considered as solvent, because otherwise a complaint
could be brought before a competent judge.
(1) Where a party, for any reason, rejects sureties approved
by the arbiter, or accepts others who have been rejected, much more
should he be content with those whom he accepted of his own will.
If, in the meantime, any great calamity should befall the sureties,
or they should be reduced to great poverty, where proper cause is
shown other security must be given.
11. Ulpianus, On the Edict, Book LXXV.
Julianus says: "If before I direct you to bring a suit
for the recovery of land, and being about to do this, you take sufficient
security, and afterwards you begin the suit under my direction, the
sureties will be liable".
12. The Same, On the Edict, Book LXXVII.
It is agreed by all authorities that where an heir is appointed
under a condition, and has possession of the estate during the existence
of the condition, he must give security to the substituted heir for
the delivery of the estate. If the condition should not be fulfilled,
the substituted heir acquiring the estate can claim the same, and
if he obtains it, an action can be brought on the bond. The Praetor
himself, where proper cause is shown, is frequently accustomed to
order the stipulation to be made before the condition is fulfilled,
and before the day arrives when the petition can be filed.
13. Paulus, On the Edict, Book LXXV.
Where several parties are substituted, a bond must be given
for each one of them.
14. The Same, Opinions, Book II.
The son of a family undertakes the defence of his father
during his absence; I ask whether he should give security for the
payment of the judgment? Paulus replies that anyone who acts in defence
of an absent person, even though he be his son or his father, must
furnish security to the party asking it under the terms of the Edict.
15. Macer, On Appeals, Book I.
It must be remembered that the possessors of real property
are not compelled to give security.
(1) By such a possessor is to be understood one who possesses
land either in the country or in the city, either wholly, or in part.
He also is understood to be a possessor who holds land subject to
the payment of rent to the State, that is, an emphyteutic estate;
and he also who has the mere ownership is considered to be a possessor.
Ulpianus, however, stated that he who has only the usufruct, is not
a possessor.
(2) A creditor who has accepted a pledge is not a possessor,
even though he may have possession of the article, or whether it has
been delivered to him, or is held by the debtor at the will of the
creditor.
(3) Where real property is given by way of dowry, both the
wife and the husband are understood to be possessors on account of
their possession of said property.
(4) The case is different with a party who has the right
of personal action for the recovery of land.
(5) Guardians, whether their wards or they themselves are
in possession, are considered possessors; and the same rule applies
where only one of several guardians is in possession.
(6) If you bring suit against me for land of which I am in
possession; and judgment is rendered in your favor, and I take an
appeal; am I still to be considered the possessor of said land? It
may be very properly stated that I am the possessor of the same, because
I still hold it; nor does it make any difference that I can subsequently
be deprived of my possession.
(7) To ascertain whether a party is, or is not a possessor,
the time when a bond was required must be considered; for just as
the party is none the worse who has sold his possession after giving
a bond, so he who takes possession after a bond has been executed
obtains no advantage.
16. Paulus, On the Edict, Book VI.
He who has promised under oath to appear in court, is not
held to have committed perjury if he fails to do so for some good
reason.
Tit. 9. In what
way security must be given in a noxal action.
1. Ulpianus, On the Edict, Book VII.
Where anyone has promised that a slave on whose account a
noxal action is brought, shall be produced in court, the Praetor says
"that he must produce him in the same condition in which he was
at the time when legal proceedings were instituted".
(1) Let us consider what the words "in the same condition"
mean. I think, in fact, that he is in the same condition who does
not do anything to prejudice the case of the party who brings the
suit. Labeo states that if the slave should cease to belong to the
party who makes the promise, or the right of action should be lost,
he would not be in the same condition; just as where a party was in
as good a condition as his adversary, so far as litigation is concerned,
is placed; in a word, one on account of either the place, or the party
being changed. Therefore, where a slave is sold to someone who cannot
be sued in the same court as the party making the promise, or is delivered
to someone who is more powerful, he thinks that he cannot be produced
in court in the same condition. Where, however, he is surrendered
in satisfaction for damage which he has committed, Ofilius thinks
that he cannot be produced in the same condition; as, by his surrender
for this purpose, he is of the opinion that all noxal actions instituted
by others are barred.
2. Paulus, On the Edict, Book VI.
We, however, adopt a different rule; for when a slave is
surrendered in satisfaction of damages, the right of action is not
extinguished on account of any of the reasons previously stated; for
the action always follows the slave, just as if he had put in an appearance
in the first place.
(1) Where the slave, on account of whom a noxal action can
be instituted by anyone, is absent, and where his master does not
deny that he is under his control, Vindius holds that he can be compelled
to promise to produce him in court, or to defend him, and if he is
unwilling to do this, he must give security to produce him as soon
as possible; but if he falsely denies that he is under his control,
he will be compelled to defend the suit without the surrender of the
slave; and Julianus stated this also, even where the master contrived
by fraud that the slave should not be under his control. If the slave
is present, and the master is absent, and there is no one to defend
the slave, he should be removed by the order of the Praetor, but if
proper cause be shown, his defense can afterwards be conceded to his
master, as Pomponius and Vindius state; nor will the master be prejudiced
by his absence. Therefore, the right of action which the plaintiff
lost because when the slave was taken away he became his property,
can be restored to him.
3. Ulpianus, On the Edict, Book VII.
Where a noxal action is brought against a person who has
only the usufruct in a slave, and he refuses to defend him, the right
to bring suit for the recovery of the usufruct shall be denied him
by the Praetor.
4. Gaius, On the Provincial Edict, Book VI.
Where anyone brings a noxal action against one of two owners
of a slave, the question arose whether he shall be obliged to give
security with respect to the share of his fellow owner? Sabinus says
that he is not obliged to do so because he is defending his own slave,
just as if he was wholly his own property; since he is obliged to
defend the entire interest, and he shall not be heard if he is prepared
to defend only his own share.
5. Ulpianus, On Sabinus, Book XLVII.
Where a party has promised to produce a slave in court in
the same condition, and he is produced after having been set free;
if a capital offence, or one implying the commission of injury is
involved, he is not properly produced; because one kind of punishment
is inflicted on slaves by lashes in the case of injury, and another
is inflicted upon a freeman, as, for instance, a pecuniary fine. So
far, however, as other noxal actions are concerned, he is held to
be in a better condition.
6. Paulus, On Sabinus, Book XI.
Where, however, it was promised to produce a slave who is
about to become free, he is held to be in the same condition, even
though he may be free when he appears; because the attainment of his
freedom was tacitly understood.
Tit. 10. Concerning
one who prevents a person from appearing in court.
1. Ulpianus, On the Edict, Book VII.
The Praetor has considered it most just to punish the malice
of one who prevents the appearance of another in court.
(1) He not only is held to be guilty of malice who detains
a party either with his own hands, or through the agency of those
in his service, but also he who requests others to detain him or abduct
him to prevent his appearing in court, whether they knew, or were
ignorant of what he intended to do.
(2) Where any person communicates evil tidings to another
on his way to court by means of which he prevents him from appearing,
we consider it to be malicious, and he is liable under the Edict;
although some authorities are of the opinion that the party who was
so credulous would only have himself to blame.
(3) Where a defendant is prevented from appearing through
the malice of the plaintiff, he will not have a right of action against
the latter under this Edict, since he must be contented with an exception
in case he should be sued for the penalty of his bond because he did
not appear in court, but the case is different if he was prevented
by another, for then he could bring an action against him.
(4) Where several persons have acted fraudulently, all are
liable; but if one of them pays the penalty, the others are released
from liability, as the plaintiff has no further interest in the matter.
(5) All authorities are of the opinion that in an instance
of this kind, where a slave is concerned, a noxal action must be brought.
(6) The right of action passes to the heir, but not for a
longer time than a year; and I think that an action will lie against
the heir only to the extent of preventing him from profiting by the
fraud of the deceased.
2. Paulus, On the Edict, Book VI.
Where the slave of the plaintiff, with the knowledge of his
master, commits a fraud to hinder me from appearing in court, and
his master does not prevent him when he could do so, Ofilius says
that an exception should be granted against his master to prevent
him from profiting by the fraud of the slave. But if, in fact, the
slave committed the act without the consent of his master; Sabinus
says that a noxal action will lie, and that the act of the slave ought
not to prejudice his master, except to the extent that he shall lose
him when he himself has committed no wrong.
3. Julianus, Digest, Book II.
An action will lie under this Edict against a party who,
by means of fraud, prevented anyone from appearing in court, for a
sum equal to the interest the plaintiff had in his appearance. In
a suit of this kind it is ascertained if the plaintiff lost anything
on account of this; as, for example, whether the defendant obtained
ownership of the property in question by lapse of time, or was freed
from liability to be sued.
(1) It is evident that if the party who acted maliciously
to prevent the other from appearing in court is not solvent, it will
be just to grant a restitutory action against the defendant, lest
he may profit and the plaintiff suffer loss on account of the fraud
of another.
(2) If the stipulator has been prevented from appearing in
court through the fraudulent act of Titius, and the promisor has been
prevented by that of Maevius; each of them has a right of action in
factum against the party by whose fraudulent act he was prevented.
(3) If both the stipulator and the promisor were each prevented
from appearing in court by the fraudulent act of the other, the Praetor
shall come to the relief of neither of them, for the fraud committed
by each is mutually set off.
(4) If I stipulate with a surety for fifty aurei in
case the defendant should not appear, and I am suing the defendant
for a hundred aurei, and, through the wrongful act of Sempronius,
the defendant fails to appear in court, I can recover a hundred aurei
from Sempronius, for that amount seems to have been my interest in
the matter; because if the party had appeared I would have had an
action against him for a hundred aurei, or one against his
heir for the same amount, although the surety had bound himself to
me for a smaller sum.
Tit. 11. Where a
party who has given a bond to appear in court does not do so.
1. Gaius, On the Provincial Edict, Book I.
The Praetor orders that a day shall be granted for every
twenty thousand paces in addition to that on which the bond is executed,
as well as that on which the party is bound to appear in court, for,
indeed, this enumeration, as applied to the journey, is burdensome
to neither of the litigants.
2. Ulpianus, On the Edict, Book LXXIV.
We do not require the defendant to appear in court where
the matter with reference to which he promised to appear has been
settled; but this must take place before the day fixed for him to
appear. If, however, the settlement was made afterwards, an exception
on the ground of fraud should be interposed; for who would trouble
himself concerning the promise of the penalty after the case had been
disposed of? For anyone would think that an exception on the ground
that the matter had been settled would be valid, because the agreement
also included the penalty; unless the contrary had been specially
agreed upon by the parties.
(1) Where anyone, by reason of municipal employment, and
without any fault of his own, has been prevented from appearing in
court in accordance with his promise, it is perfectly just that an
exception should be granted him.
(2) In like manner, a party who was called as a witness in
some other proceeding, and was not able to appear in court, is also
entitled to relief.
(3) Where anyone has promised to appear in court and is unable
to do so, having been prevented by illness, a storm, or the power
of the current of a river he, not undeservedly, may have the benefit
of an exception; for as his presence is required by such a promise,
how can he appear who is hindered by illness? Therefore, the Law of
the Twelve Tables directs that: "If the judge, or either of the
litigants are prevented from being present by a serious illness, the
day of the trial shall be postponed".
(4) Where a woman does not appear, not because of illness
but because she is pregnant, Labeo declares that she is entitled to
an exception. If, however, she remains in bed after delivery, proof
must be offered that she was prevented by what is equivalent to sickness.
(5) The same rule applies where anyone is attacked by insanity,
for he who is prevented by insanity is prevented by illness.
(6) When I stated that a party was entitled to relief if
he does not appear because he has been prevented by a storm, or the
power of the current of a river; by the word "storm" a tempest
either on land or sea is to be understood. We should understand the
storm to be such a one as hinders travel by land or navigation.
(7) The power of the current of a river can also be understood
to take place without a storm; for we understand it to be of such
a character that its extent offers a hindrance, either because a bridge
has been destroyed, or no boat is available.
(8) Where, however, anyone, if he had started on his journey
sooner, or had sailed at a more opportune time could have avoided
a storm, or the high water of a river thus set bounds to his progress,
is he entitled to no benefit for an exception? This, indeed, should
be decided after proper investigation, for the rule ought not to be
enforced so rigorously that he could be asked: "Why he did not
start a long time before the day mentioned in his promise?" Nor,
on the other hand, should it be allowed him to allege the storm or
the high water of the river as the cause of his non-appearance, when
this was his own fault. Suppose, for instance, that a man was at Rome
at the time he gave his promise to appear, and that he went to a provincial
town, not from urgent necessity but on account of his own pleasure;
is he not unworthy of the benefit of this exception? Or, suppose the
tempest arose while he was on the sea, but he could have come by land,
or have avoided the river by going round it; it may properly be said
that he would not always be entitled to the benefit of an exception;
unless the ruggedness of the country did not permit him to travel
by land, or to go round the river. Where, however, the river had either
overflowed its banks so as to cover the entire place where he had
to appear, or some accidental misfortune had overwhelmed that place,
or had rendered it dangerous for him to come; an exception should
be granted him under such circumstances, in accordance with all that
is proper and just.
(9) In like manner, an exception is granted to him who, when
he intended to appear in court, was detained by a magistrate without
any fault of his own; for if he, himself, tried to have this done,
or gave cause for it, he is not entitled to the benefit of the exception,
as only his own fraudulent conduct could injure him, and he would
not be injured by the act of others who maliciously caused him to
be detained. Where, however, a private individual detained him, he
is under no circumstances entitled to the benefit of this exception.
3. Paulus, On the Edict, Book LXIX.
An action for an amount equal to his interest in the case
will lie against the party who detained him.
4. Ulpianus, On the Edict, Book LXXIV.
Where anyone who has promised to appear cannot do so because
he has been convicted of a capital offence, he is very properly excused.
We understand condemnation to capital punishment to mean sentence
of death or exile. It might, perhaps, be asked of what value is this
exception to a person who has been condemned? To this it may be answered
that it is necessary for his sureties, and if he is sent into exile
without losing his right of citizenship, this exception will profit
anyone charged with his defence.
(1) It should be borne in mind that if he who does not appear
because he was accused of a capital crime, was so situated that he
could not make use of an exception, as this is only granted to one
that is convicted; it is clear that if he did not appear for the reason
that he was prevented by being in prison, or in military custody,
that he would then be in such a position that he could make use of
an exception.
(2) Moreover, if a person does not appear for the reason
that he was prevented by a funeral in his family, an exception should
be granted him.
(3) Again, if anyone is held in captivity by enemies, and
for this reason did not appear in court, he is entitled to the benefit
of an exception.
(4) The question has arisen whether an agreement can be made
that no exception shall be pleaded, where a party breaks a promise
made for the purpose of his appearance in court? Atilicinus is of
the opinion that an agreement of this kind is not valid. I think,
however, that such an agreement is valid, if the causes of the exception
were expressly stated, and the party making the promise voluntarily
renounced them.
(5) In like manner, the question arises whether an exception
can be granted to the sureties of a party who gave security to appear
in court, when he was not obliged to do so? I am of the opinion that
the question is whether security was given through mistake, or by
agreement; for, if it was done by mistake, an exception should be
granted the sureties; but if it is done by agreement, they are by
no means entitled to it. Julianus stated that where anyone bound himself
for a larger amount than was fixed, and did this through ignorance,
he was entitled to an exception, but where he bound himself for such
a sum in pursuance of an agreement, Julianus says that the exception
is barred by filing a replicatio, on the ground of the agreement
entered into.
5. Paulus, On the Edict, Book LXIX.
Where there are two creditors equally interested, and a debtor
promises one of them under a penalty to appear in court, and the other
prevents him from so doing, an exception does not lie against the
other if they are partners, lest the fraud of one of them may benefit
the other on account of the partnership.
(1) In like manner, where there are two debtors jointly liable,
and one of them, breaking his promise, does not appear in court, and
the plaintiff then demands the property in dispute from one, and the
penalty for non-appearance for the other, the suit to recover the
penalty will be barred by an exception.
(2) Also, where a promise has been made by a father to appear
in court on account of some contract made by his son, and afterwards
the plaintiff institutes proceedings against the son; they are barred
by the exception if the plaintiff sues his father on account of his
promise. On the other hand, the same rule applies if the son promised
to appear and the plaintiff brings an action against the father for
the peculium.
6. Gaius, On the Law of the Twelve Tables, Book I.
Where he who has given a surety does not appear because he
is absent on public business, it is unjust for the surety to be required
to appear on behalf of the other, when the latter is not free to do
so.
7. Paulus, On the Edict, Book LXIX.
Where anyone promises that a slave, or some other person
who is under the control of another shall appear in court, he is entitled
to the same exceptions as he would be if he had bound himself for
a freeman, or the head of a family; except where the slave is said
to be absent on public business, for a slave cannot be absent on public
business. Leaving this exception out of consideration, all the others,
being generally applicable, can be taken advantage of in the cases
of freemen as well as in those of slaves.
8. Gaius, On the Provincial Edict, Book XXIX.
If in four, five, or more days after the party promised to
appear in court he gives the plaintiff occasion to proceed against
him, and the latter is not prejudiced by the delay, it may be stated
that in consequence of this, he can defend himself by means of an
exception.
9. Ulpianus, On the Edict, Book LXXVII.
Where a slave promises to appear in court his agreement is
of no force, either with respect to himself or his sureties.
(1) If anyone has promised by a single stipulation to appear
in court on behalf of several slaves, Labeo says that the entire penalty
can be collected although only one slave does not appear; because
it is a fact that all of them were not present. However, if a portion
of the penalty is tendered for that one, he can make use of an exception
on the ground of fraud if suit is brought on the stipulation.
10. Paulus, On Plautius, Book I.
If I promise that a party shall appear in court who already
is alleged to have become free by lapse of time, for example, because
he was no longer liable to be sued; an action will lie against me
either to produce or defend him, that the truth may be ascertained.
(1) Where a promise has been made that a man will appear,
and he loses his life through the treachery of the surety before the
day fixed for his appearance; we can certainly make use of the rule:
"That an action can not be brought for a penalty before the time
arrives, for the reason that the entire stipulation is held to refer
to a certain day".
(2) A man who was about to bring an action for injury stipulated
before issue was joined, that if his adversary should appear in court,
and when the time for the fulfillment of the promise had elapsed,
he died; it is held that no right of action exists against the heir
by reason of the stipulation; for the reason that stipulations of
this kind are only entered into on account of the principal action;
and although, as a rule, the stipulation entered into to appear in
court passes to the heir, still, in this instance, it is not the case;
for if the deceased had desired to bring suit on the stipulation after
having abandoned that of injury, he would not have been permitted
to do so. The same rule will apply if the party against
whom I desire to bring an action for injury had died after the time
stated in the stipulation, for I have no right to bring an action
on the stipulation against the heir; and this was the opinion of Julianus.
Hence, where sureties have been given, no action whatever will lie
against them after the principal is dead. Pomponius holds the same
opinion where the party did not die a great while afterwards, for
the reason that, if he had appeared in court, his adversary would
have been able to join issue with him.
11. Ulpianus, On Sabinus, Book XLVII.
Where anyone promises that a party shall appear in court,
he ought to see that he does so in the same legal condition. To appear
in the same condition means that he shall do so in such a way that
the plaintiff will not be any the worse in the prosecution of the
case, even if it may be more difficult for him to obtain satisfaction
of his claim; and although this may be the case, it can be said that
the party is still in the same legal condition; or even if he may
have contracted new obligations, or have lost money, he still is held
to be in the same legal condition; therefore, when anyone appears
after judgment has been obtained against him, he is still held to
appear in the same legal condition.
12. Paulus, On Sabinus, Book XI.
He, however, who has acquired the right to make use of some
new privilege is not held to appear in the same legal condition.
(1) It must be held that any estimate of the interest of
the plaintiff should be calculated with reference to the time when
he ought to have appeared, and not to that when proceedings were instituted;
even though he may have ceased to have any interest in the question
at issue.
13. Julianus, Digest, Book LV.
When a slave himself promises to appear in court to conduct
a case, or this is stipulated by another, the stipulation is of no
effect, nor are the sureties liable; because a slave cannot either
sue or be sued.
14. Neratius, Parchments, Book II.
If one man, as the agent for another, stipulates that he
will merely produce him whom he agreed to produce without mentioning
a penalty, and he should not appear, a stipulation of this kind can
hardly have any weight; because the agent, so far as it relates to
himself, has no interest in his appearance. But since, in making the
stipulation, he is transacting the business of another, it may be
stated that the benefit which must be considered in the matter does
not accrue to the agent, but to the party whose business he was transacting;
so that if the party does not appear, there should be due to the agent
an amount equal to the interest of the principal in the suit in accordance
with the terms of the stipulation. The same rule can be said to apply
even more strongly, where the agent had stipulated in the following
terms: "Whatever compensation is proper"; as we understand
these words to have reference not to the benefit of the agent himself,
but to that of the principal in the action.
15. Papinianus, Questions, Book II.
Where a guardian promises to appear in court and comply with
his agreement, and in the meantime his ward becomes of age, or dies,
or rejects the estate, an action on the stipulation shall be refused;
for if an action had been brought to recover the property itself,
and judgment had been rendered against the guardian, and any of the
above things had taken place; it has been settled that no action on
the judgment could be instituted against him.
Tit. 12. Concerning
festivals, delays, and different seasons.
1. Ulpianus, On all Tribunals, Book IV.
It is stated in an Address of the Divine Marcus that no one
can compel another to go to trial in the seasons of harvest and vintage;
because being occupied in agricultural pursuits, he should not be
compelled to appear in court.
(1) If, however, the Praetor, either through ignorance or
neglect, should continue to summon the parties, and they should voluntarily
appear, and he should render judgment in the presence of the litigants,
who are here of their own accord, the judgment will be valid, even
though he who summoned them acted improperly; but if he should render
judgment in their absence, and while they continued to remain away,
it follows that it must be held that his judgment is of no effect;
for the act of the Praetor can not abrogate the law. The judgment
therefore becomes void without appeal.
(2) There are, however, certain cases which must be excepted,
and in which we may be compelled to appear before the Praetor during
the seasons of harvest and vintage, namely, where the property in
question will be lost by lapse of time; that is to say, where delay
will deprive the party of his right of action. And, in fact, when
the matter is urgent, we can be forced to appear before the Praetor,
but this only can be done in order that issue may be joined; and it
is so stated in the words of the aforesaid Address, for, after issue
has been joined, if either of the parties refuses to proceed, the
Address grants him delay.
2. The Same, On the Edict, Book V.
The Divine Marcus in the same Address delivered before the
Senate, states that there are other cases in which application may
be made to the Praetor on holidays, as, for instance, for the appointment
of guardians and curators; to admonish persons as to their duties;
to hear excuses; to arrange for support; to prove age; to make provision
for the possession for unborn children; for the preservation of property
for the benefit of either legatees or the beneficiaries of trusts;
or where security should be given against unlawful damage; or for
the production of wills; or that a curator may be appointed for the
property of one who is uncertain whether he will have an heir or not;
or for the support of children, parents, or patrons; or for an entry
upon an estate which is suspected of being insolvent; or for the examination
of an atrocious injury; or for the bestowal of freedom granted under
a trust.
3. The Same, On the Edict, Book II.
It is also customary to dispense justice during the season
of harvest and vintage in cases where the property is liable to be
lost either by time or by death, as for example, in actions for theft,
ordinary injury, atrocious injury, and where parties are said to have
been guilty of robbery during a fire, the destruction of a house,
shipwreck, or the seizure of a boat or a ship and other cases of this
kind. The same rule applies where the property may be lost through
the lapse of time, or the term within which suit can be brought is
about to expire.
(1) Proceedings relating to freedom can be concluded at all
times.
(2) Justice can also be dispensed at all times in the case
of a person who accepts something contrary to the public welfare under
pretence of the right of holding a market.
4. Paulus, On the Edict, Book I.
The Governors of provinces ordinarily fix the time of harvest
and vintage according to the custom of the neighborhood.
5. Ulpianus, On the Edict, Book LXXII.
Magistrates are not accustomed to administer justice, or
to exercise their authority at all on the day before the Kalends
of January.
6. The Same, On the Edict, Book LXXVII.
When judgment is rendered on a holiday, it is provided by
law that it shall not be valid except by the consent of the parties;
and where judgment is rendered otherwise, in opposition to this rule,
no one is obliged to comply with it, or make any payment; nor can
any official to whom application has been made under such circumstances
compel the party to obey his judgment.
7. The Same, On the Office of Consul, Book I.
It is stated in the Address of the Divine Marcus that delay
for the production of instruments cannot be granted more than once;
but, for the benefit of litigants, where proper cause is shown, a
delay can be obtained a second time in the same, or in a different
province, according to the rules observed in different localities,
and especially where anything unexpected arises. It must be ascertained
if the deceased had obtained any delay for the production of documents,
and whether this should also be granted to his successor; or, indeed,
as it has been granted once, whether it cannot be granted a second
time? The better opinion is that it ought to be granted where proper
cause is shown.
8. Paulus, On Sabinus, Book XIII.
In accordance with the Roman custom, the day begins at midnight,
and ends in the middle of the following night; therefore, whatever
is done during these twenty-four hours (that is to say during the
two halves of the night and the intervening day) is held to have been
done during any hour of daylight.
9. Ulpianus, On the Office of Proconsul, Book VII.
The Divine Trajan stated in a Rescript to Minicius Natalus
that holidays only cause suspension of judicial business, and that
those matters which relate to military discipline can also be transacted
on holidays. This also includes the examination of persons who are
in prison.
10. Paulus, Sentences, Book V.
In pecuniary actions, delay cannot be granted more than once
in each case, but in capital cases three continuances may be granted
to the defendant, and two to the accuser; but in both instances proper
cause must be shown.
Tit. 13. Concerning
the statement of a case.
1. Ulpianus, On the Edict, Book IV.
Where anyone wishes to bring an action, he must state the
grounds for it; as it is most just that the party sued should know
whether he ought to submit, or set up a defence, and if he makes up
his mind to the latter course, that he may be sufficiently informed
to conduct the proceedings by ascertaining the nature of the suit
which is brought against him.
(1) To state the case is also to give the other party an
opportunity to take a copy of the same, or of what is included in
the complaint, either by presenting it to him, or by dictating it.
Labeo says that he also makes a statement of his case who conducts
his adversary to the register of the Praetor, and shows him what he
is about to dictate, or by communicating to him the form which he
intends to use.
(2) Notices of this kind should be drawn up without mention
of the date, or the consul, lest some fraud may be contrived from
the employment of the same, and a prior date be inserted in the instrument.
The Praetor, however, excludes the date and the consul when the document
was written, but not that on which payment was to have been made;
for the day of payment is, as it were, the principal part of the stipulation.
Accounts, however, must be stated with the date and the consul; as
where money is paid and received this cannot otherwise be clear, unless
the day and consul are set forth.
(3) All matters must be stated which anyone intends to bring
before the court, but a party is not compelled to produce instruments
which he does not expect to use.
(4) He is not considered to have given proper notice who
does not include the entire stipulation.
(5) Relief shall be granted to those who, on account of their
age, ignorance, sex, or for any other good reason, have failed to
make proper statements.
2. Paulus, On the Edict, Book III.
Where suit is brought for a legacy the Praetor does not order
the terms of the will to be set forth, probably because the heir usually
has a copy of the will.
3. Mauricianus, On Punishments, Book II.
The Senate decreed that no one against whom a suit is brought
by the Treasury, shall be forced to exhibit any other documents to
the informer than those that relate to the case in which the latter
has declared himself to be informer.
4. Ulpianus, On the Edict, Book IV.
The Praetor says: "Those who pursue the business of
bankers must exhibit to a depositor the account in which he is interested,
in addition to the day and the consul."
(1) The principle of this Edict is perfectly just; for as
bankers keep the accounts of individuals, it is but proper that any
books or papers relating to business transactions in which I am interested,
should be shown to me as being, to a certain extent, my own property.
(2) The son of a family is included in the terms of the Edict,
so that he also is compelled to exhibit his accounts; and the question
arises is the father likewise compelled to do so? Labeo states that
he is not, unless his son conducts the business of a banker with his
knowledge; but Sabinus has properly declared that this is not to be
admitted, where he reports his profits to his father.
(3) Where a slave carries on a banking business (for he can
do so), if, indeed, he acts with the consent of his master, the latter
can be compelled to produce his accounts, and an action will lie against
him, just as if he, himself, had carried on the business; but, if
the slave acts without the knowledge of his master, it will be sufficient
if his master swears that he is not in possession of his accounts.
Where a slave carries on the business of a banker, with his own private
means, the master is liable for the same, or for the amount invested;
but where the master has the accounts, and does not produce them,
he is liable for the entire amount.
(4) Even a party who has ceased to conduct a banking business
can be compelled to produce his books and papers.
(5) A person is compelled to produce his accounts in the
place where he has conducted his banking business, and this has been
thoroughly established. When he keeps his books in one province, and
conducts his business in another, I am of the opinion that he can
be compelled to produce them in the place where he carries on his
business; for he was to blame in the first place for removing his
books elsewhere. If he conducts his business in one place, and he
is required to produce his books in another, he is by no means obliged
to do so, unless you wish him to furnish you with copies of the same,
where legal nroceedings have been instituted, and, of course, at your
expense.
5. Paulus, On the Edict, Book III.
Time must be granted him to bring these accounts.
6. Ulpianus, On the Edict, Book IV.
Where a banker keeps his books at his residence, or in his
warehouse, (as many of them do), he must either conduct you to the
place where they are, or give you a copy of the accounts.
(1) The successors of a banker are also obliged to produce
accounts. Where there are several heirs, and one of them has possession
of the accounts, he alone can be compelled to produce them; but where
all have possession of them, and one produces them, all can be compelled
to do so. What then must be done if the one who produces them is obscure
and entitled to but little consideration, so that doubt may justly
arise concerning the good faith of their production? Therefore, in
order that the accounts may be compared, the others should also produce
theirs; or, indeed, sign those produced by one of them. The same rule
will apply where there are several bankers who have been requested
to produce their accounts; for where there are several guardians who
are discharging a trust together, they must all produce their accounts,
or sign that produced by one of them.
(2) Moreover, an oath is exacted from the adversary of the
banker, "that he does not demand the production of his accounts
for the purpose of annoyance"; in order that he may not require
the production of accounts which are superfluous, or of which he already
has possession, for the sake of annoying the banker.
(3) Labeo says that an account is a statement of all mutual
payments, receipts, credits and debts of the parties; and that no
account can begin with the mere payment of a debt. And where the party
has received a pledge or a deposit, he cannot be required to disclose
the fact, as these are beyond the scope of an account; the banker,
however, must furnish a statement where a promise to pay has been
made, for this belongs to his business as a banker.
(4) An action will lie under this Edict for the amount of
the interest of the plaintiff.
(5) From this it is apparent that the Edict only applies
to what concerns the party himself; but it is held that the account
concerns me if you merely keep it under my direction; but if my agent
directs this to be done, while I am absent, must it be produced by
me, on the ground that it concerns me? The better opinion is that
it must be produced. I have no doubt that my agent must produce the
account which he keeps for me as it concerns him, and he must give
security that I will ratify it, if no mandate were given him.
(6) Where a date appears at the beginning of a page under
which the account of Titius is set down, and afterwards my own appears
without date or consul; the same date and consul must be given to
me also, as the day and consul entered at the beginning belong to
the entire account.
(7) To exhibit an account is either to dictate it or make
a statement of it in writing, or to produce an account book.
(8) The Praetor says: "I will order accounts to be produced
to a banker, or to anyone who demands it a second time, only where
proper cause is shown."
(9) He forbids accounts to be produced to a banker for the
reason that he himself can obtain information from the books and papers
of his business; and it is absurd that he should ask that books be
produced for his benefit, in a case where he himself is obliged to
produce them. Whether an account must be produced
for the heir of the banker is a matter for consideration, for if the
banker's books and papers have come into his possession, they should
not be produced for him; but if not, this can be done where proper
cause is shown, as, under such circumstances, the accounts must have
been produced for the banker himself, where he proves that the accounts
have been lost through shipwreck, the destruction of a house, fire,
or any other similar accident; or where they are in a place which
is at a great distance, as for instance, beyond sea.
(10) The Praetor does not require accounts to be produced
for a party demanding it a second time, unless for good cause.
7. Paulus, On the Edict, Book III.
For instance, where he shows that the accounts given in the
beginning are in some distant place, or that they are not complete,
or that he has lost them through unavoidable accident, and not through
negligence, for if he lost them by an accident of this kind for which
he should be excused, he shall be ordered to produce them a second
time.
(1) This term: "A second time," has two significations,
one in which reference is made to the second time which the Greeks
call deuteron, and the other which includes
also subsequent times, which the Greeks call palin; by which is understood "as often as is necessary";
for it may happen that a party has lost an account which was twice
given him, so that the term "a second time" is understood
to mean "frequently".
8. Ulpianus, On the Edict, Book IV.
When a banker is required to produce his accounts, and, influenced
by malice, he does not do so, he is punished; but he is only liable
for negligence when it closely resembles malice. He is guilty of malice
in producing his accounts who does so with fraudulent intent, or who
produces them incomplete.
(1) He who becomes liable under the terms of this Edict is
required to pay, by way of damages, a sum equal to the interest I
had in having the accounts produced at the time this was ordered by
the Praetor, and not the interest which I have at present; and, therefore,
even if my interest has entirely ceased to exist, or has become less
or greater, my right of action will neither be increased nor diminished.
9. Paulus, On the Edict, Book III.
There are some persons who are obliged to produce our accounts,
although they are not required to do so by the Praetor under this
Edict; as, for instance, where an agent transacts our business or
keeps our accounts, he is not required to produce his accounts by
the Praetor, through fear of an action in factum, for the reason
that we can obtain this by an action on mandate. Also, where a partner
has transacted the business of the partnership fraudulently, the Praetor
cannot proceed against him under this clause, for there is an action
in behalf of his partner; nor can the Praetor force a guardian to
furnish an account to his ward, for it is customary to compel him
to do this by an action of guardianship.
(1) It makes no difference whether the successors, the father,
or the master of the banker are in the same business; for since they
take his place and succeed him in law, they are bound to discharge
his obligations. A party to whom a banker has left his accounts does
not appear to be included, (since by these words his legal successor
is meant) any more than, if he, while living, had presented him with
them. Nor will the heir himself be liable, if he has not had possession
of them and has not acted fraudulently. If, however, before he delivers
them to the legatee, he should be notified not to do so, he will be
liable just as if he acted through malice; and he will also be liable
so long as he has not surrendered them. If he does not act maliciously,
the legatee will be compelled to produce the accounts, where sufficient
cause is shown.
(2) Nor is it unjust that money-brokers, as Pomponius says,
should be compelled to produce their accounts, because brokers of
this kind, as well as bankers, keep accounts, and receive and pay
out money at different times; which is principally proved by their
entries and account books, and reliance is very frequently placed
upon their good faith.
(3) Moreover, the Praetor orders accounts to be produced
for those who demand it, and who swear that they are not bringing
suit for the purpose of annoyance.
(4) Accounts are considered as concerning us, not only when
we ourselves have been parties to a contract, or have succeeded someone
who has made a contract, but also where a contract has been made by
a person under our control.
10. Gaius, On the Provincial Edict, Book I.
When a banker is ordered to produce his accounts, it makes
no difference whether the controversy has arisen with him or with
another party.
(1) The reason why the Praetor requires only bankers to produce
their accounts, and not others who are transacting business of a different
description, is, because their functions and occupations are of a
public nature, and their chief duty is to carefully keep accounts
of their transactions.
(2) An account is considered to be produced when this is
done from the very beginning (for an account cannot be understood
unless it is thoroughly examined). This, however, does not signify
that the entire account-book, or all the parchments of any person,
are to be examined or copied; but that only the portion of the account
which is required to give a party the information he desires, is to
be examined and copied.
(3) When an action is brought for an amount which is equal
to the interest of the plaintiff in having the account produced, it
follows that whether he does not obtain what he brought suit for,
or whether he is condemned for the reason that he did not have the
account with which he could have sustained his case; he can recover
by this action whatever he lost in this way. Let us consider whether
this is actually true, for if he can prove before the judge who is
to decide between him and the banker, that he could have gained his
case in the trial in which he was beaten, he must then have been able
to prove it; and if he did not do so, or if he did prove it, and the
judge did not pay any attention to this fact, he has only the right
to complain of himself, or of the judge. This, however, is not the
case, for it might happen that he has at present obtained possession
of the account from the defendant himself, or in some other way; or
be able to prove, by means of other documents, or witnesses, which
for some reason or other, he was not able to make use of at the time
of the trial, that he could have gained his case. For, under these
circumstances, a man has a right of action for theft or for fraudulent
alteration of an obligation made for his benefit; as well as an action
for unlawful damage, as, although we may not have been able to prove
something previously for the reason that an undertaking has been abstracted,
and may have lost our case, still, we can prove it now by other documents,
or witnesses, which we were unable to make use of in the first place.
11. Modestimis, Rules, Book III.
It has been established that copies of documents may be produced
without the signature of the party who exhibits them.
12. Callistratus, On the Monitory Edict, Book I.
It is held that women are excluded from conducting banking
business, as this is an occupation belonging to men.
13. Ulpianus, On the Edict, Book IV.
This action is not permitted after the lapse of a year, nor
against an heir, unless through some act of his own; but it is granted
to an heir.
Tit. 14. Concerning
agreements.
1. Ulpianus, On the Edict, Book IV.
The justice of this Edict is natural, for what is so suitable
to the good faith of mankind as to observe those things which parties
have agreed upon?
(1) The term pactum is derived from pactio,
and the word pax has also the same origin.
(2) An agreement is the consent of two or more persons to
the same effect.
(3) The term "conventio" is a general one,
and refers to everything to which persons who have transactions with
one another give their consent for the purpose of making a contract,
or settling a dispute; for as parties are said to come together who
assemble from different places in one; so, also, the same word is
applicable to those who, from different feelings of the mind, agree
upon one thing; that is to say, arrive at one opinion. The term "conventio"
is such a general one, as Pedius very properly says, that there is
no contract and no obligation which does not include it, whether it
is made by the delivery of the property, or verbally; for even a stipulation,
which is verbally made, is void, where consent does not exist.
(4) The greater number of conventions have names that are
peculiar to them, as, for instance, sale, hire, pledge, and stipulation.
2. Paulus, On the Edict, Book III.
Labeo says that an agreement can be entered into by delivery
of property, by a letter, or by a messenger. It can also be made between
absent parties, and it is understood that an agreement can be entered
into by tacit consent.
(1) Hence, if I restore his obligation to my debtor, it is
held to have been agreed upon between us that I will not make any
claim against him; and it is established that, if I do, he can plead
in bar an exception based on the agreement.
3. Modestinus, Rules, Book III.
But after a pledge has been restored to a debtor, there is
no question that the debt can be collected, if the money had not been
paid; unless it is expressly proved that the contrary was intended.
4. Paulus, On the Edict, Book III.
Again, for the reason that tacit agreements are valid, it
is settled that personal effects brought into dwelling-houses, which
have been rented, are to be regarded as pledged to the lessor; even
though nothing was specially stated to that effect.
(1) In accordance with this principle, a person who is dumb
can enter into a contract.
(2) A stipulation made on account of a dowry is another proof
of this, for no one has a right, before marriage, to bring suit for
the dowry, any more than if this had been expressly stated; and if
the marriage does not take place, the stipulation has no effect, which
is also the opinion of Julianus.
(3) Having been consulted in a case where it was agreed that
the principal could not be demanded so long as the interest was paid,
and the stipulation was unconditionally drawn up, it was the opinion
of Julianus that the condition was implied by the stipulation, just
as if it had been expressed therein.
5. Ulpianus, On the Edict, Book IV.
There are three kinds of conventions, some of which relate
to public matters, and some to private affairs. Those which are private
are either based upon legislative enactments or upon the Law of Nations.
(1) A public convention is one by which peace is made when
two military leaders agree upon certain things to that end.
6. Paulus, On the Edict, Book III.
A convention based upon legislative enactment is one which
is confirmed by some law; and therefore sometimes an action arises
from an agreement, or is abrogated by it; which takes place as often
as it is supported by an enactment, or by a Decree of the Senate.
7. Ulpianus, On the Edict, Book IV.
Some conventions based on the Law of Nations give rise to
actions, and others give rise to exceptions.
(1) Those which give rise to actions are not known by their
own names, but pass under the special designation of contracts; as
purchase, sale, hire, partnership, loan, deposit, and other similar
terms.
(2) Where the matter has not been placed under the head of
some special contract, then, as Aristo very properly stated to Celsus,
an obligation exists; as, for instance, I gave you something with
the understanding that you would give me something else; or I gave
you something with the understanding that you would perform some act,
and this is sunallagma, that is to say,
a mutual agreement, and a civil obligation will arise therefrom. Therefore
I am of the opinion that Julianus was very justly criticized by Mauricianus
for his decision in the following case: "I gave you Stichus with
the understanding that you should manumit Pamphilus; you manumitted
him, but Stichus was evicted by another party." Julianus holds
that an action in factum should be granted by the Praetor;
but the former says that there is a civil action for an object which
is uncertain, that is to say, one in prescribed terms, for there is
a contract which Aristo calls sunallagma,
and from this the action is derived.
(3) Where something is promised to prevent the commission
of a crime, no obligation arises from such an agreement.
(4) But, where there is no ground for an agreement, it has
been established that no obligation can be created; therefore, a mere
agreement does not create an obligation, but it does create an exception.
(5) Sometimes, however, it does give rise to a suit, as in
bona fide actions; for we are accustomed to say that agreements
which are entered into are included in bona fide actions;
but this must only be understood in the sense that where agreements
follow as parts of a contract, they are included so as to give the
right of action to the plaintiff; but if they are added afterwards,
they are not considered to belong to the contract, nor do they confer
a right of action; otherwise, an action would arise from the agreement.
For instance, if after a divorce, it is agreed that the dowry shall
not be surrendered at the end of the time prescribed by law, but immediately;
this will not be valid; otherwise there would be an action founded
on an agreement. Marcellus states the same thing, and if during an
action of guardianship, it is agreed that a higher rate of interest
than that established by law shall be paid, this is of no effect,
or there would be an action founded upon an agreement; as the agreements
contained in the contract constitute its very essence; that is, they
were made when the contract was entered into. I am aware that Papinianus
said that if, after a sale, any agreement was entered into which was
not a part of the contract, an action growing out of the sale could
not be brought, on account of this same rule, namely: "No action
can arise on a simple contract," which may also be stated concerning
all bona fide actions. The agreement, however, will have
effect on the side of the defendant, for the reason that agreements
which are afterwards interposed usually give rise to exceptions.
(6) To such an extent are subsequent agreements included
in the same contract, that it is established that in purchases and
other bona fide cases where the exception has not been
followed up, the party can withdraw from the purchase. If this can
be done as a whole, why cannot a part of it be changed by an agreement?
This Pomponius stated in his Sixth Book on the Edict. Since this is
the fact, an agreement will still have effect on the part of the plaintiff,
so as to give him a right of action, where no further proceedings
have been taken; and, on the same principle, if the whole contract
can be set aside, why can it not be amended and appear, as it were,
in a new form? This can be said to have been properly stated, and
therefore I do not disapprove of what Pomponius says in his book of
"Readings", namely: that one can by an agreement partially
abandon a purchase, so that a purchase of the part may be made a second
time. Where, however, two heirs are left by the purchaser,
and the vendor agreed with one of them to abandon the sale; Julianus
says that the agreement is valid, and that the sale is in part annulled,
since the other heir by entering into another contract would have
been able to obtain an exception as against his co-heirs. Hence the
opinion of Julianus and Pomponius are very properly established.
(7) The Praetor says: "I will require the observance
of agreements which have not been entered into maliciously or contrary
to the laws, plebiscites, Decrees of the Senate, or Edicts of the
Emperors, where no fraud appears in any of them."
(8) There are certain agreements which relate to real property,
and others which relate to personal property. Those that relate to
real property are those by which I agree, in general terms, not to
bring suit; those which relate to personal property are those in which
I agree not to sue a certain individual, for instance: "I will
not sue Lucius Titius." Whether an agreement is made with reference
to property or to a person is to be ascertained not only from the
language, but also from the intention of the contracting parties;
since generally, (as Pedius says) the name of the person is inserted
in the contract, not for the purpose of rendering it personal, but
that it may be shown with whom the contract was made.
(9) The Praetor says that an agreement fraudulently executed
shall not be observed. Fraud is perpetrated by means of craft and
artifice; and, as Pedius says, a contract is fraudulently executed
whenever something is done, under the pretence that something else
is intended, for the purpose of cheating another.
(10) The Praetor adds nothing with reference to contracts
entered into in order to defraud; but Labeo very properly says that
if he did, it would be either unjust or superfluous; unjust if, for
instance, the creditor having once given his debtor a bona fide
release, should afterwards attempt to annul it; superfluous, if he
was deceived when he granted the release, for fraud is included in
deceit.
(11) Where a contract is fraudulently made in the beginning,
or some fraudulent act is committed afterwards, there is ground for
an exception, according to the words of the Edict: "And no fraud
is committed".
(12) With reference to what is usually inserted at the end
of an agreement, namely: "Titius asked, Maevius promised";
these words are not only understood as forming part of the contract,
but also as being part of the stipulation; and therefore an action
on a stipulation arises from them, unless the contrary is expressly
proved; for the reason that this was done, not with the intention
of making a stipulation, but only of entering into an agreement.
(13) If I agree that an action shall not be brought on a
judgment, or for burning a house, an agreement of this kind is valid.
(14) If I agree not to institute proceedings upon the "notice
of a new structure", some authorities are of the opinion that
the agreement is not valid, because it, as it were, attacks the authority
of the Praetor; but Labeo makes a distinction here, as, for instance,
where the new structure may be injurious to private property the agreement
can be entered into; but where it affects public property this cannot
be done, which is a very proper distinction. Thus it is lawful to
enter into an agreement with respect to all other matters to which
the Edict of the Praetor relates, and which affect private property,
but not to those where the injury of public property is concerned;
for the law even permits a compromise to be made with reference to
a theft.
(15) Where anyone agrees not to institute proceedings on
account of a deposit, the contract is valid, according to Pomponius.
Also where anyone agrees: "To assume all risk attending a deposit";
Pomponius states that the agreement is valid, and it cannot be set
aside as contrary to law.
(16) Generally speaking, whenever an agreement is contrary
to the Common Law, one is not obliged to observe it, nor can a legacy
be made to depend upon this; nor where an oath has been made that
the party will not sue, the agreement should not be observed, Marcellus
states the same in the Second Book of the Digest; and where a stipulation
has been entered into with reference to matters which it is not lawful
to make the subject of a contract it is not to be observed, but entirely
rescinded.
(17) When anyone before entering upon an estate makes an
agreement with the creditors to pay them less than is due, then the
contract will be valid.
(18) Where a slave makes an agreement before he obtains his
freedom and inheritance, Vindius says that the contract is of no force,
because he was appointed an heir under a condition. Marcellus, however,
in the Eighth Book of the Digest, is of the opinion that if a direct
heir, and a slave who is a necessary heir, both of whom have been
absolutely appointed, make an agreement before meddling with the estate,
they do so properly, which indeed is correct. He also thinks that
a foreign heir, where he enters upon the estate under the direction
of creditors, does so lawfully, and that he also has a right of action.
But where anyone (as we have previously stated) enters into an agreement
while in slavery, Marcellus denies that his contract is valid, since
whatever act a person performs while in slavery does not usually profit
him after he has obtained his freedom; which must be admitted with
respect to an exception based upon a contract. But the question arises
does an exception which is based upon fraud benefit him? Marcellus,
although he was previously in doubt whether this was the case, in
similar instances, however, admits it; as, for instance, where the
son of a family, having been appointed heir, makes an agreement with
creditors, but after he has been emancipated, enters upon the estate;
he holds that he can make use of an exception on the ground of fraud.
He is of the same opinion where a son, during the lifetime of his
father, makes an agreement with the creditors of the latter; for in
this instance an exception on the ground of fraud will be admitted.
Finally, an exception on the ground of fraud must not be rejected
even in the case of slaves.
(19) At present, however, an agreement of this kind can only
be a disadvantage to creditors where they assemble, and by common
consent state with what portion of their debts they will be satisfied.
But, if they do not agree, the intervention of the Praetor will be
necessary, who in his decision must follow the will of the majority.
8. Papinianus, Opinions, Book X.
It has been decided that, in the case of creditors, a majority
has reference to the amount of the indebtedness, and not to the number
of individuals. If the number of the creditors is the same as the
number of the debts, then the majority of the creditors must be given
the preference; when the number of the creditors is equal, the Praetor
must follow the will of him who is highest in rank among them; but
where everything is equal on both sides, the most humane opinion must
be chosen by the Praetor, for this can be gathered from the Rescript
of the Divine Marcus.
9. Paulus, On the Edict, Book LXII.
Where there are several creditors who have a single right
of action, they are held to occupy the position of only one person;
as, for example, where there are several creditors by stipulation,
or several bankers whose obligations were entered into at the same
time, they shall be considered as one, because there is only one debt.
Where several guardians of one ward, who is a creditor, enter into
an agreement, they are regarded as one, for the reason that they did
so in behalf of a single ward. Again, where a single guardian enters
into an agreement in behalf of several wards who are claimants of
one debt, it is established that they are to be considered as one
person, since it is a difficult matter for one man to represent two
persons; for, indeed, lie who has several causes of action against
a party who has only one, is not permitted to represent several persons.
(1) We estimate the total amount of indebtedness when several
sums are due; as, for example, where several sums, which together
amount to a hundred aurei, are owing to one man; and a sum
of fifty aurei is owing to another; for, in this instance,
we must consider the amount which is made up of several sums, because
when they are added together they are greater than the single one.
(2) We must also add to the principal the interest which
is due.
10. Ulpianus, On the Edict, Book IV.
The Rescript of the Divine Marcus provides that all the creditors
shall assemble. But what if some of them are absent? Must those who
are absent follow the example of those who are present? But if the
agreement is valid as against those who are absent, an important question
arises, namely, whether this agreement will bar absent privileged
creditors? I repeat that, before the rule established by the Divine
Marcus, the Divine Pius stated in a Rescript: "That the Treasury
also, in those cases where hypothecation does not exist, as well as
other privileged creditors, shall follow the example of the others."
All these rules must be observed with reference to
those creditors who are without security.
(1) Where the stipulation of a penalty has been added to
the contract, the question arises whether an exception on the ground
of contract applies, or whether a suit should be brought on the stipulation?
The opinion of Sabinus, which is the better one, is that he who made
the stipulation can take either course, as he may choose; if, however,
he makes use of the exception founded on the contract, it will be
just to release the stipulation.
(2) We are for the most part accustomed to state: "that
an exception founded upon fraud is an aid to an exception founded
upon contract"; and then there are persons who cannot make use
of an exception founded upon contract, but can use one founded upon
fraud; which was the opinion of Julianus, and was endorsed by many
others; for example, if my agent should make an agreement, I could
have the benefit of an exception on the ground of fraud, which opinion
is held by Trebatius, who thinks that as an agreement of my agent
may injure me, it may also be to my advantage.
11. Paulus, On the Edict, Book III.
For the reason that he can be paid.
12. Ulpianus, On the Edict, Book IV.
For it is established that it will be a source of injury
to me, whether I ordered him to make a contract, or whether he was
my general agent; as Puteolanus states in the First Book on Assessors,
since it has been decided that he also can institute judicial proceedings.
13. Paulus, On the Edict, Book III.
But if the agent was only appointed for the purpose of bringing
an action, an agreement made by him does not prejudice his principal,
for the reason that he cannot receive payment.
(1) Where, however, the agent was appointed for the transaction
of affairs in which he himself is interested, he is considered to
occupy the place of a principal, and thus any agreement entered into
with him must be observed.
14. Ulpianus, On the Edict, Book IV.
Moreover, an agreement made by the head of a company is valid
both for and against it.
15. Paulus, On the Edict, Book III.
An agreement made by a guardian on behalf of his ward is
valid, as is stated by Julianus.
16. Ulpianus, On the Edict, Book IV.
Where an agreement has been made with the purchaser of an
estate, and the vendor of the same brings an action, an exception
on the ground of fraud is a bar to his proceeding; for, according
to a Rescript of the Divine Pius, equitable actions must be granted
to the purchaser of an estate, and it is but just that a debtor of
the estate should be able to make use of an exception on the ground
of fraud, as against the vendor.
(1) Where an agreement has been made between the owner of
the property sold and the purchaser of the same, for instance, that
a slave who had been purchased should be restored to the person who
sold him as owner; if he brings suit for the price he will be barred
by an exception on the ground of fraud.
17. Paulus, On the Edict, Book III.
If I give you ten aurei and agree with you that you
shall owe me twenty, no obligation arises for more than ten, for none
can be contracted for a greater amount than has been given.
(1) There are certain rights of action which are annulled
under a contract by operation of law, as, for instance, one for injuries,
or one for theft.
(2) A right of action based upon an agreement arises in the
case of a pledge, under Praetorian Law; it is, however, annulled by
an exception whenever I agree not to sue.
(3) When anyone makes an agreement that no suit shall be
brought against himself, but shall be brought against his heir; an
exception filed by the heir will be of no benefit to him.
(4) If I should agree that no suit shall be brought against
me, or against Titius, this will be of no advantage to Titius, even
if he should become the heir, because this cannot be confirmed subsequently.
Julianus established this rule in the case of a father who made an
agreement that suit should not be brought against him, or his daughter,
when the daughter afterwards became the heir of her father.
(5) Where an agreement has been entered into with the vendor
with reference to the property, it can be pleaded by the purchaser,
according to the opinion of several authorities, and Pomponius states
that we make use of this rule; but, according to Sabinus, when the
agreement is personal, it can also be pleaded against the purchaser.
He thinks that this is also the law where a succession arises through
donation.
(6) When the unlawful possession of the estate of another
enters into an agreement, many are of the opinion that the agreement
will neither benefit nor prejudice the heir, if he should recover
the estate.
(7) If a son or a slave enters into an agreement that no
action shall be brought against the father or the master.
18. Gaius, On the Provincial Edict, Book I.
(Whether the agreement is made with reference to a former
contract with the parties themselves, or with the father or master).
19. Paulus, On the Edict, Book III.
They are entitled to an exception. The same rule applies
to those who are held in slavery in good faith.
(1) Again, if the son of a family makes an agreement that
suit shall not be brought against him, it will be to his advantage
and to that of his father also, if the latter is sued for the peculium
of the son.
20. Gaius, On the Provincial Edict, Book I.
Or for any profit obtained by an obligation contracted by
his son, or where he is sued as a defender of his son, if he should
prefer this.
21. Paulus, On the Edict, Book III.
It can also be pleaded by the heir of the father during the
lifetime of his son, but after the death of the son this cannot be
done by the father or his heir, because the agreement is a personal
one.
(1) Where a servant enters into an agreement that he shall
not be sued, the agreement is worthless. Let us see whether an exception
on the ground of fraud can be pleaded. When the agreement has reference
to property, an exception based upon the agreement itself can be pleaded
by the master and his heir, but where the agreement is personal, then
the exception on the ground of fraud is only available.
(2) By making an agreement we cannot benefit those who are
under our control; but it will be an advantage to us if we make an
agreement in their behalf, as Proculus states. And this doctrine is
correct if this was the understanding that the time that the contract
was entered into; but if I agree that you shall not bring suit against
Titius, and you begin an action against me in his name, an exception
on the ground of contract is not allowed; for what is no benefit to
Titius himself will be of none to his defender. Julianus also stated
that where a father agreed that no suit should be brought either against
him or his son, the better opinion is that the exception on the ground
of contract cannot be pleaded by the son of the family, but merely
one on the ground of fraud.
(3) The son of a family can enter into an agreement not to
bring suit for a dowry when he becomes his own master.
(4) The son of a family can also legally enter into an agreement
concerning a legacy bequeathed to him under some condition.
(5) Where there are several persons who have the right to
collect an entire sum of money, or who are co-debtors for the same
sum, the question arises to what an extent an exception on the ground
of contract can be pleaded by one for, and against the others? An
agreement made with reference to the property will benefit those who
have been released from this obligation, where he who entered into
the agreement had an interest in this; and therefore an agreement
of the debtor will be an advantage to the sureties.
22. Ulpianus, On the Edict, Book IV.
Unless it was the intention of the parties that no suit should
be brought against the principal, but that it might be brought against
the surety; in this instance the surety cannot avail himself of an
exception.
23. Paulus, On the Edict, Book III.
An agreement made by the surety would be of no benefit to
the principal, because the surety has no interest in the money not
being collected from the debtor; nor would it be of any benefit to
the co-sureties, nor will an agreement made with another, no matter
what his interest may be; for he can only do this when an exception
is granted him and the benefit chiefly enures to the party with whom
the agreement was made, as in the case of a principal promisor along
with those who are bound on his account.
24. The Same, On Plautius, Book III.
Where a surety has bound himself in a matter in which he
was interested, in this instance he is to be considered as a principal
debtor; and where an agreement is made with him, it is held to have
been made with the principal debtor.
25. The Same, On the Edict, Book III.
The same rule applies where two principal debtors, or two
bankers who are partners, bind themselves.
(1) Labeo says that a personal agreement does riot concern
a third party, nor in fact an heir.
(2) But although the agreement of a surety is of no advantage
to the principal debtor, Julianus says that the latter can, nevertheless,
generally avail himself of an exception on the ground of fraud.
26. Ulpianus, On the Edict, Book IV.
That is to say, it was understood that no suit could be brought
against the principal debtor. The same rule applies to co-sureties.
27. Paulus, On the Edict, Book III.
Where one of two bankers, who are partners, make an agreement
with a debtor, can an exception be pleaded in bar against the other?
Neratius, Atilicinus, and Proculus, are of the opinion
that it can not, if the agreement relating to the property was made
by one of them; for it has only been settled that the other can bring
suit for the entire debt. Labeo holds the same opinion, because although
one of them can receive payment, he cannot change the obligation;
and thus payment of what they have loaned can properly be made to
those who are under our control, but the obligation cannot be changed;
and this is correct. The same rule applies to two creditors under
a stipulation.
(1) Where an informal agreement has been made with a principal
debtor granting him time, neither debtor nor surety will have the
benefit of any further time. If the debtor, without releasing himself,
enters into an agreement that his surety shall not be sued; some authorities
think that this is of no benefit to the surety, even though the principal
was interested therein; for the reason that the same exception should
be available to him as to the principal. I have held that the surety
is entitled to the benefit of an exception, for this would not be
the case where a right was acquired through a free person, but rather
one where we have provided for the party himself who entered into
the agreement, which rule is at present in use.
(2) After an agreement has been made that suit shall not
be brought, and it is subsequently agreed that it may be, the former
agreement is annulled by the latter one; not indeed by operation of
law, as one stipulation is extinguished by another, where this is
the intention of the parties, because the law governs stipulations,
and in contracts all depends upon the facts; therefore an exception
is rebutted by a replication. On the same principle it happens that
the first agreement will not release the sureties. But where the first
agreement was of such a character that it extinguished the right of
action, as, for instance, in a case of injury, suit cannot subsequently
be brought after making the agreement that this can be done; because
the first right of action was lost, and an agreement made afterwards
has no effect to bestow a right of action, and an action for injury
cannot be based on a contract, but only on insulting behavior. We
say that the same rule applies in the case of bona fide
contracts, where the agreement annuls the entire obligation, as, for
example, in the case of a purchase; for the prior obligation is not
revived by a new contract, but it would be an advantage to it. But
where the entire contract was not abrogated, but something in it was
excluded, the second agreement acts as a renewal of the first. This
can take place in an action for dowry, for example, where a woman
makes an agreement that her dowry shall be restored to her without
delay, and afterwards enters into one that it shall be returned to
her at the time authorized by law; in this instance the dowry will
revert to her in accordance with the law, nor can it be stated that
the condition of the dowry becomes any worse by reason of the agreement;
for as often as the right of action for a dowry resumes the condition
with which the Law of Nature invested it, the state of the dowry does
not become worse, but is restored to its original form. This opinion
was also held by Scaevola.
(3) It cannot be provided by agreement that a person shall
not be responsible for bad faith; for although a party may agree not
to bring suit for a deposit, he seems by the terms of the contract
to agree not to bring an action on the ground of fraud, and an agreement
of this kind can be pleaded.
(4) Agreements which contain immoral provisions should not
be observed; as, for instance, if I agree not to sue you for theft
or injury, if you commit them; for it is proper that the fear of punishment
for theft or injury should exist. After these offences have been committed,
however, we can make an agreement. In like manner, I cannot agree
that I will not apply for an interdict for violence, so far as this
affects the interest of the public. And, in general, where the agreement
extends beyond the interest of individuals, it should not be observed.
And, above all things, it must be borne in mind that an agreement
made with reference to one thing or to one person, shall not injure
another thing or another person.
(5) Where you owe me ten aurei, and I contract not
to sue you for twenty, it is established that you are entitled to
an exception on the ground of contract, or on the ground of fraud,
to the amount of ten aurei. Again, if you owe me twenty aurei,
and I agree to only sue you for ten; the result will be that, if you
oppose an exception to me, I can only exact from you the payment of
the remaining ten.
(6) But where, having stipulated for ten aurei, or
Stichus, I make an agreement with you for ten, and then bring suit
for Stichus or the ten aurei, if an exception is pleaded on
the ground of contract, the right of action will be absolutely extinguished;
for, as the entire obligation will be discharged by payment, or by
a suit, or by a lease of one of the two things; so, when an agreement
is entered into not to bring suit for one thing, the entire obligation
is disposed of. But where it is understood between us that ten aurei
shall not be given to me, but that Stichus shall be, I can legally
bring suit for Stichus, and no exception can be pleaded against me.
The same rule applies where an agreement was made not to bring suit
for Stichus.
(7) But where you owe me a slave in general terms, and I
agree not to bring suit for Stichus, an exception on the ground of
contract can be pleaded against me, if I bring suit for Stichus; but
if I bring suit for another slave, I am acting properly.
(8) Moreover, if I make an agreement not to bring suit for
an estate, and, acting as heir, I bring suit for certain pieces of
property, an exception on the ground of contract can be pleaded against
me with respect to what is agreed upon; just as if the agreement had
been that I should not sue for a tract of land, and I bring an action
for the usufruct of the same; or, having agreed not to bring suit
for a ship, or a building, I bring an action for certain parts of
them, after they have been demolished; unless there is some express
understanding to the contrary.
(9) Where a release is not valid, it is held to be understood
by tacit agreement that suit shall not be brought.
(10) A slave cannot make an agreement on behalf of the heir
who is about to enter upon the estate, because the latter is not yet
his master; but if the agreement was made with reference to property,
it can be acquired by the heir.
28. Gaius, On the Provincial Edict, Book I.
Agreements entered into against the Civil Law are not considered
valid; as, for instance, where a ward, without the consent of his
guardian, enters into an agreement not to sue his debtor, or that
he will not bring suit within a certain time (for example, within
five years) for he cannot legally receive payment without the consent
of his guardian. On the other hand, if a ward makes an agreement that
he shall not be sued for what he owes, the agreement is held to be
valid, for he is permitted to improve his condition without the consent
of his guardian.
(1) Where the curator of an insane person or a spendthrift
makes an agreement that suit shall not be brought against the said
insane person or spendthrift, it is perfectly proper that such an
agreement of the curator should be sustained, but not in the contrary
case.
(2) Where a son, or a slave makes an agreement that he himself
will not bring an action, the agreement is void. But if it was made
with reference to property, that is to say that suit shall not be
brought for the money, it must be held to be valid as against the
father or the master, if the son or the slave has the unrestricted
management of his own peculium; and the property concerning
which the agreement was entered into is his peculium. This,
however, is not altogether advisable, for since it is true, as Julianus
holds, that he who has the management of his peculium granted
him still has no right to dispose of it; it follows that if the agreement
was made not to sue for the money for the purpose of giving it away,
the contract should not be allowed to stand; but if he should obtain
something, by way of consideration for making the contract, which
is worth not less, or even more than he gives, the contract must be
considered valid.
29. Ulpianus, On the Edict, Book IV.
But if he lends his master's money, Celsus says that what
he agreed upon at the time of the loan is valid.
30. Gaius, On the Provincial Edict, Book I.
Let us consider, with reference to the son of a family, whether
the agreement is valid when he agrees not to bring suit, because sometimes
the father of a family has a right of action, for example, for injury;
however, where a father has a right of action on account of an injury
done to his son, there is no doubt that if he wishes to bring suit
he will not be barred by the agreement of his son.
(1) Where a man stipulated with a slave for money which Titius
owed him, and brings suit against Titius, the question arises whether
he can and should be barred by an exception on the ground of contract?
Julianus thinks that he should be barred where the stipulator has
a right of action against the master of the slave for his peculium,
that is to say, if the slave has good ground for interposing, because,
for instance, he owed the same amount to Titius. But where the slave
intervenes as surety, a right of action is not granted for his peculium,
on this ground; nor should the creditor be prevented from bringing
suit against Titius. In like manner, he should, by no means, be prevented
from doing so if he thought that the slave was a freeman.
(2) If I should stipulate with you under a condition for
a sum which Titius owes me absolutely, and the condition should not
be fulfilled, and I bring suit against Titius, can I and should I
be barred by an exception based upon contract? The better opinion
is that an exception cannot be interposed.
31. Ulpianus, On the Edict of the Curule Aediles, Book
I.
It is allowed at all times to enter into a contract contrary
to the Edict of the aediles, whether this is done at the time of making
the sale, or afterwards.
32. Paulus, On Plautius, Book V.
Where it is stated that, when an agreement is made with the
principal debtor that suit shall not be brought against him, the surety
is also entitled to an exception; and this was established for the
benefit of the debtor, to prevent an action of mandate being brought
against him. Therefore, if no action of mandate will lie, for instance,
because the party became a surety with the intention of donating the
debt, it must be held that the surety is not entitled to an exception.
33. Celsus, Digest, Book I.
A grandfather promised a dowry on behalf of his granddaughter
by his son, and agreed that an action should not be brought for the
dowry, either against himself or his son. Then, if an action for the
dowry is brought against a party who is the co-heir of the son, the
former cannot protect him by pleading an exception on the ground of
contract; the son, however, can very properly make use of it, since
a party is permitted to consult the best interest of his heir, and
there is nothing in the way of his providing for one of his heirs,
if he should become an heir, and not consult the interest of the others.
34. Modestinus, Rules, Book V.
It is the opinion of Julianus that the right of agnation
cannot be renounced, any more than anyone can say that he does not
wish to be a proper heir.
35. The Same, Opinions, Book II.
Two brothers, Titius and Maevius, and a sister Seia, divided
an estate between them, which they held in common, and executed an
instrument in which they stated that they divided the estate of their
mother, and alleged that no property held in common by them remained.
Afterwards, however, two of them, namely, Maevius and Seia, who were
absent at the time of their mother's death, learned that a sum of
money in gold had been abstracted by their brother, of which sum no
mention was made in the instrument of partition. I desire to know
whether, after the agreement for partition was made, an action for
the recovery of the money which had been abstracted would lie in favor
of the brother and sister against the other brother? Modestinus answered
that if, when they brought suit for a portion of the money which was
said to have been abstracted by Titius, an exception was pleaded against
them under a general contract, when they ignorantly agreed to the
fraud which had been committed by Titius, they could avail themselves
of a replication on the ground of fraud.
36. Proculus, Epistles, Book V.
Where you are in possession of land belonging to me, and
I make an agreement with you that you shall deliver possession of
the same to Attius, and I bring suit to recover the property from
you, I cannot be barred by an exception based upon contract, unless
you have already delivered possession of the property, or the agreement
between us made for your benefit, and it is not your fault that you
did not deliver it.
37. Papirius Justus, On Imperial Constitutions, Book II.
The Emperors Antoninus and Verus stated in a Rescript, "That
a debtor to the Republic could not be released from payment by the
curator, and that the release granted to the people of Philippi must
be revoked."
38. Papinianus, Questions, Book II.
Public law cannot be changed by the contracts of private
persons.
39. The Same, Questions, Book V.
It was established by the ancients that where an agreement
was obscure or ambiguous, it must be construed against a vendor and
a lessor, because it was in their power to have stated the terms of
the contract more clearly.
40. The Same, Opinions, Book I.
A contract stated as follows: "I acknowledge that you
are not bound", is not limited to the person, but, since it is
general, it will apply to heirs as well as litigants.
(1) Where a party who appeared entered into an agreement
that, within a certain time, he would satisfy the judgment, if the
sum which he agreed to pay by way of compromise was not paid within
the time; the appellate judge, without reference to the principal
point at issue, shall act upon this as a lawful agreement, just as
if the party had admitted his liability.
(2) After the division of an estate and of its liabilities,
where the different creditors have accepted interest from the separate
co-heirs for the entire amount of the indebtedness, without any assignment
of liabilities, as had been agreed upon; the right of action possessed
by the creditors against each heir for his respective share shall
not be interfered with, unless the heirs do not offer to pay the entire
indebtedness to them, in compliance with the terms of the settlement.
(3) A father who promised a dowry to his daughter and agreed:
"That if she should die after him without leaving any children,
a portion of the dowry shall belong to her brother, who will be her
heir". If her father should afterwards have children, and make
them heirs by his will, this agreement will give rise to an exception
on the ground of fraud, since it was understood between the contracting
parties that the heir should be provided for; and, at that time, when
the father had no children, he appeared to express his last wishes
for the benefit of the brother.
41. The Same, Opinions, Book XI.
"If you will pay me a part of your debt by a certain
time I will give you a release for the remainder, and discharge you
from liability." While no right of action exists under these
circumstances, nevertheless, it is settled that the debtor has a right
to an exception.
42. The Same, Opinions, Book XVII.
It was agreed between a debtor and a creditor, "That
the creditor should not assume the burden of paying the tax on land
which was encumbered, but that the necessity of payment should be
imposed upon the debtor". I have answered that an agreement of
this kind is not to be observed, so far as the Treasury is concerned,
for it is not permissible that a rule of law affecting the Treasury
should be overthrown in the interest of private individuals.
43. Paulus, Questions, Book V.
In making sales we know what acts the debtor must perform
on the one hand, and what the purchaser must do on the other; but
if any different terms are inserted in the contract they must be observed.
44. Scaevola, Opinions, Book V.
Where a minor was about to reject the estate of his father,
his guardian made an agreement with several creditors of the estate
that they would accept a certain proportion of their indebtedness.
The curators of the minor made the same compromise with other creditors;
and I ask whether the guardian, being himself a creditor of the father,
was entitled to retain the same proportion of the debt? I have answered
that the guardian who had induced the other creditors to accept a
percentage of what was due, ought himself to be content with a similar
amount.
45. Hermogenianus, Epitomes of Law, Book II.
A contract for partition, which has not been concluded by
either delivery or stipulation, being a mere agreement without consideration,
does not confer a right of action.
46. Tryphoninus, Disputations, Book II.
An agreement entered into between an heir and a legatee,
by which the latter agrees not to take security from the former, has
been held to be valid; as a Constitution of the Divine Marcus recorded
in the Semestria, sets forth that the will of the deceased
shall be observed in this, as well as in other matters; and the release
of security to the heir by the legatee under contract cannot be revoked
if he changes his mind; as it is entirely lawful for a man to change
for the worse his power to enforce his legal right, or his hope of
future payment.
47. Scaevola, Digest, Book I.
The purchaser of a tract of land bound himself for the payment
of twenty aurei, and agreed to this by stipulation; and afterwards,
the vendor entered into an undertaking that he would be content with
thirteen, and would accept payment of that amount within a specified
time. Suit having been brought against the debtor for the payment
of the latter sum, he agreed that, if it was not paid within another
specified period, it could be collected from him in accordance with
the bond first executed. The question arose as to whether the whole
debt could not be collected under the first obligation, since the
debtor had not complied with the terms of the later agreement? I answered
that it could, in accordance with what had been stated.
(1) Lucius Titius had a confused account with Gaius Seius,
a money broker, for the reason that he had received and paid him different
sums. In the end, Seius owed him money, and Lucius Titius received
a letter from him in the following words: "According to the broker's
account which you have with me up to this date, there remains in my
hands as the result of many transactions the sum of three hundred
and eighty six aurei, and the interest upon the same. I will
return to you the amount which you have in my hands without agreement.
If any instrument issued, that is to say, written, by you, remains
in my hands for any reason, no matter what the amount therein may
be, it shall be considered void and cancelled". The question
arose, since Lucius Titius had ordered Seius, the broker, to pay his
patron three hundred aurei, before this letter was written,
whether, according to the terms of the letter, by which all undertakings
pertaining to any contract whatever were to be considered void and
cancelled, it was provided that neither Seius nor his sons could be
sued on this ground? I answered that if the account only included
the receipts and payments, other obligations remained in the same
condition.
48. Gaius, On the Law of the Twelve Tables, Book V.
It is evident that every agreement made at the time of the
delivery of property is valid.
49. Ulpianus, On Sabinus, Book XXXVI.
When anyone loans money, and agrees that he will only bring
suit against the debtor for the amount that he is able to pay, is
such a contract valid? The better opinion is that this contract is
valid, as there is nothing improper for anyone to consent to be sued
for an amount which his means permit.
50. The Same, On Sabinus, Book XLIII.
I do not think that it is inadmissible to insert in a contract
of deposit loan, hire, and others of the same description, an agreement
of this kind, namely: "You must not make my slave a thief";
that is to say, you must not solicit him to become a thief, or a fugitive,
nor must you neglect him to such an extent that he will commit theft;
for as an action will lie for the corruption of a slave, so this agreement
which relates to the prevention of the corruption of slaves will stand.
51. The Same, On the Edict, Book XXVI.
If you think that on account of a legacy you are obliged
to make an agreement with your debtor that you will not bring suit
against him; your debtor is not released by operation of law, nor
can he bar your suit by means of an exception on the ground of contract,
as Celsus has stated in the Twentieth Book.
(1) He also said in the same place, "If you think incorrectly
that you are obliged to pay a legacy to Titius, and you direct your
debtor to pay it to him, and the latter, being at the same time, his
debtor, makes an agreement with Titius not to sue him; this will not
extinguish your right of action against your debtor, or his against
his debtor either."
52. The Same, Opinions, Book I.
A letter by which a party bound himself that a certain person
was his co-heir, confers no right of action against parties in possession
of the estate.
(1) If an agreement is made between a debtor and the party
who purchased a tract of land held in pledge by the creditor, under
the pretext that this was done on behalf of the debtor, so that the
profits already obtained might be set off against the debt, and that
the balance should be settled, and the tract returned to the debtor;
then the heir must carry out the contract made by the deceased.
(2) An agreement which provides, "But where the creditor
has paid any sums for taxes on real property held by him in pledge,
he can recover the same from the debtor, and the debtor must pay any
taxes due upon the same tract of land"; this is a legal contract
and therefore must be observed.
(3) Where a party was about to bring suit to set aside an
inofficious will made by his father, and an agreement was entered
into that he should receive a certain sum of money as long as the
heir lived, an attempt was made to have this agreement construed as
a perpetual obligation; but it was stated in a rescript that a claim
of this kind could not be admitted on any ground of law or equity.
53. The Same, Opinions, Book IV.
It is entirely proper to advance the expenses of a suit to
a party engaged in litigation, but it is not legal to enter into an
agreement that the sum expended for that purpose shall not be paid
with lawful interest, but that half the amount recovered by the suit
shall be paid.
54. Scaevola, Notes on Julianus, Digest, Book XXII.
If I agree not to make a claim for Stichus, to whom I am
entitled, it is not understood that my debtor is in default; and if
Stichus dies, I do not think that the defendant is liable, if he was
not in default before the contract was entered into.
55. Julianus, Digest, Book XXXV.
Where a debtor has an usufruct in a slave, and the slave
in whom he enjoys said usufruct makes an agreement that suit shall
not be brought against the debtor, by doing so he improves the condition
of the latter. Likewise, if a creditor possesses such an usufruct,
and agrees not to bring suit, and the slave then agrees that the creditor
may do so, the creditor, by virtue of the agreement made by the slave,
can properly claim the right to bring an action.
56. The Same, On Minicius, Book VI.
Where for some reason an agreement is made that a landlord
shall not sue his tenant, and there is good cause for such an agreement,
the tenant, nevertheless, can bring an action against his landlord.
57. Florentinus, Institutes, Book VIII.
Where a man accepts interest from a debtor in advance, it
is held to be a tacit agreement that he will not bring suit for the
principal during the time for which the interest is paid.
(1) Where a contract is drawn up in such a way that it is
personal on one side, and relates to property on the other; as, for
instance, that I will not bring suit, or that you shall not be sued;
my heir will then have a right of action against all of you, and all
of us will have a right of action against your heir.
58. Neratius, Parchments, Book III.
There is no doubt that the parties can withdraw in all contracts
relating to purchase, sale, leasing, hiring, and other similar obligations,
where everything remains the same by the common consent of those who
have bound themselves. The opinion of Aristo goes still farther, for
he thinks that if I have performed all the acts which it was necessary
for me to perform as vendor, with regard to the property sold to you;
and, while you still owe me the purchase money, it is agreed between
us that you shall restore to me everything relating to the property
sold, which was delivered to you by me, and that you shall not pay
the purchase money; and, in accordance with this, you do return it
to me, you will cease to owe me the money; because good faith which
governs matters of this kind admits of this interpretation and agreement.
It does not matter whether the agreement is made to abandon the contract,
all things as to which we bound ourselves remaining the same; or whether
you return everything which I delivered to you, and we then agree
that you shall not give me anything on account of the contract. It
is certain that the following cannot be accomplished by a contract
which has reference to annulling what has been done; that is, that
you may be compelled to return to me what I have already given you;
since, in this way, the business would be transacted not so much by
annulling our former contract, as by creating new obligations between
ourselves.
59. Paulus, Rules, Book III.
Whenever any benefit can be obtained by us through a stipulation,
it is established that our condition is improved by agreements made
by the same parties.
60. Papirius Justus, Constitutions, Book VIII.
The Emperor Antoninus stated in a Rescript to Avidius Cassius:
"That if creditors would be satisfied with a portion of their
debts out of an estate, even though this was done through a stranger,
those who were nearly related to the deceased must be first considered,
if they were solvent".
61. Pomponius, On Sabinus, Book IX.
No one, by entering into an agreement, can bring it about
that he will not be able to consecrate his own ground, or bury a corpse
on his own land, or dispose of his property without the consent of
his neighbor.
62. Furius Anthianus, On the Edict, Book I.
Where a debtor, after having agreed that suit shall not be
brought against him for the debt (in such a way that the contract
also benefits the surety), made another contract that suit may be
brought against him; the question arose as to whether the surety was
deprived of the benefit of the first agreement? It is the better opinion
that where the right to an exception has been once acquired by the
surety, it cannot afterwards be taken from him without his consent.
Tit. 15. Concerning
compromises.
1. Ulpianus, On the Edict, Book L.
When a man makes a compromise with reference to something
which is in doubt, and the issue of the trial is uncertain, the compromise
is not brought to a termination; but he who makes an agreement surrenders
by way of donation through liberality, something which is certain
and undisputed.
2. The Same, On the Edict, Book LXXIV.
Anyone can accept a compromise, not only where the Aquilian
stipulation is inserted, but also where an agreement is entered into.
3. Scaevola, Digest, Book I.
The Emperors Antoninus and Verus stated in a Rescript, "That
there is no doubt that private agreements which have been entered
into do not prejudice the rights of others";
therefore, where a compromise has been made between the heir and the
mother of the deceased, the will cannot be held to be rescinded by
it, nor are manumitted slaves or legatees deprived of their rights
of action thereby. Hence, when they bring suit for anything under
the will, they must sue the heir mentioned therein; who, when he compromised
matters connected with the estate, whether he provided for himself
with reference to the burdens attached to it, or whether he did not
do so, he has no right to permit his own negligence to injure others.
(1) When a compromise is entered into with regard to a trust,
and afterwards codicils are found; I ask, if the mother of the deceased
has received less through the compromise than her share, ought she
to receive what is lacking by virtue of the trust? The answer was
that she ought.
(2) A debtor whose pledge had been sold by his creditor compromised
for a smaller sum with Maevius, who claimed to be the heir of the
lawful creditor, and afterwards the will of the creditor having been
produced, it appeared that Septicius was the heir. The question then
arose whether, if the debtor brought suit against Septicius for the
property pledged, he could make use of an exception on the ground
of the compromise made with Maevius, who was not the legal heir at
that time; and can Septicius have a right to recover the money which
was paid by the debtor to Maevius as the heir, on the ground that
it was received by him under the pretext of inheritance? The answer
was that this could not be done, according to the facts stated, for
the reason that Septicius did not himself make a compromise with him,
nor was Maevius, when he accepted it, acting as the agent of Septicius.
4. 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.
5. Papinianus, Definitions, Book I.
When the Aquilian stipulation is made use of, the consent
of the contracting parties is implied, and any actions which they
had not yet thought of remain in their former condition; for the interpretation
of persons learned in the law is opposed to all captious liberality.
6. Gaius, On the Provincial Edict, Book XVII.
In controversies arising out of a will no compromise can
take place, nor can the truth of the facts be inquired into, unless
an examination and interpretation of the words of the will is made.
7. Ulpianus, Disputations, Book VII.
A compromise is valid even after judgment has been rendered,
if an appeal has been, or can be taken.
(1) Where a surety was sued, and judgment rendered against
him, and afterwards the principal made a compromise with the party
who obtained the judgment against the surety; the
question arises, was the compromise valid? I am of the opinion that
it was, and that every cause of action against both principal and
surety was removed. If, however, the surety himself made the compromise
after he lost his case, while the judgment was not annulled by the
compromise, still, it should be considered as settled, so far as anything
which was paid is concerned.
(2) It is so true, however, that what was paid in this case
even though it does not dispose of the compromise still diminished
the amount of the judgment, that it may be held, and it is, in fact,
contained in a rescript in a case where a compromise was entered into
without permission of the Praetor, that what had been paid should
be applied to the furnishing of maintenance, and whatever, in addition,
was due on account of maintenance must be provided, but what had already
been paid should be credited.
8. The Same, On all Tribunals, Book V.
When those to whom provision for maintenance has been left,
were ready to make a compromise, and were satisfied with a moderate
sum to be paid to them at once; the Divine Marcus stated in an Address
delivered in the Senate: "That no compromise with reference to
maintenance should stand, unless it was made under the authority of
the Praetor." Therefore the Praetor is accustomed to intervene
and decide between the contracting parties whether the compromise
is one which should be admitted.
(1) Whether provision for a house, or for clothing, or for
maintenance dependent on real-estate is bequeathed, the inquiry of
the same Praetor with reference to the compromise must be held.
(2) The above-mentioned Address relates to provision for
maintenance left either by will or codicil, whether it was added to
the will, or the party died intestate. The same rule is applicable
where the provision was made by a donation mortis causa or
where a charge was imposed upon anyone. Where bequests are made for
the purpose of fulfilling a condition, we say that the rule is the
same. It is evident that a compromise can be entered into without
the authority of the Praetor when provision for maintenance is not
made mortis causa.
(3) The Address applies to sums to be paid monthly or daily
or annually, and the same rule is applicable where they are not left
for life, but only for a certain term of years.
(4) Where a certain sum is bequeathed to anyone in order
that he may support himself with the interest of the same and restore
the entire amount at the time of his death; the Address will still
apply, although the amount cannot be held to be paid annually.
(5) Where, however, a certain sum of money, or a certain
amount of property is left to Titius, in order to provide for the
support of Seius, the better opinion is that Titius can compromise;
for by this act of Titius the maintenance of Seius is not diminished.
The same rule applies where property was left to the legatee under
a trust in order to provide for maintenance.
(6) The Address forbids a compromise which is made in such
a way that anyone can spend at once the amount which is given him.
What would be the case then, if a party made a compromise without
the authority of the Praetor, to the effect that whatever was payable
to him annually by the bequest, he should receive each month? Or what
should be done if he received every day what had been left to him
to be paid every month? Or how would it be if what he had a right
to receive at the end of a year, should be received by him at the
beginning? I am of the opinion that an arrangement of this kind is
valid, because the party to be supported improves his condition by
such a transaction; and that the Address of the Emperor did not intend
that the maintenance of persons should be cut off by a compromise.
(7) It makes no difference whether the parties for whom provision
for maintenance is made are freedmen, or freeborn, rich, or poor.
(8) The Address also directs inquiry to be made before the
Praetor with reference to the following matters; in the first place,
concerning the cause of the compromise; second, concerning its terms;
third, concerning the personal characters of the parties to the transaction.
(9) With reference to the cause, it must be ascertained what
reason exists for making the compromise for the Praetor will hear
no one who desires to make a compromise without sufficient cause.
The reasons which are usually alleged are the following, namely: where
the heir and the party to be supported reside in different places;
or where either of them intends to change his residence; or where
there is some urgent reason for a sum of money to be paid at the time;
or where provision for maintenance has been charged upon several heirs,
and it is difficult for them to distribute small sums of money among
different persons; or where any other reason exists among those which
usually arise, and which may induce the Praetor to sanction the compromise.
(10) The amount of money involved in the transaction must
also be considered, for the good faith of the parties is to be determined
in this way. The amount must also be estimated according to the age
and condition of health of the person who is making the compromise,
as it is clear that it must vary in the cases of a boy, a young man,
or one who is old; and it is evident that a provision for maintenance
will end with the life of the party for whose benefit it was made.
(11) The character of the persons must also be taken into
consideration; that is to say, what are the habits of life of those
for whom provision is made, whether they are frugal and have sufficient
for their maintenance from other sources; or whether they are of an
inferior class, who will be compelled to depend entirely upon the
provision made for them. With regard to the person who is charged
with furnishing maintenance, these things must be investigated namely,
what his means are, as well as his intentions and his opinions, for
it will then be apparent whether he desires to ever reach the party
with whom he makes the compromise or not.
(12) A compromise made with respect to maintenance, does
not apply to lodging or clothing; as the Divine Marcus ordered that
special arrangements should be made with reference to these matters.
(13) Where, however, anyone makes a compromise with respect
to maintenance, it will not be considered necessary for him, against
his will, to make any arrangement concerning lodgings, or other matters;
he can, therefore, enter into an agreement with reference to all things
at once, or only concerning a few.
(14) A compromise with respect to a provision for shoes must
also be made under the authority of the Praetor.
(15) Where real-estate charged with maintenance has been
left to one or several persons, and they desire to alienate it, it
is necessary for the Praetor to decide concerning both the alienation
and the compromise. Where real-estate charged with maintenance is
left to several persons, and these make a compromise among themselves
without the consent of the Praetor, the compromise should not be sustained.
The same rule applies where land is given as security for maintenance,
for, where a pledge is given for this purpose, it cannot be released
without the authority of the Praetor.
(16) It is perfectly manifest that the consent of the Praetor
is necessary where a compromise is made for the entire amount of the
maintenance, or only for a portion of the same.
(17) If, when application is made to the Praetor, he permits
a compromise to be made without an investigation of the case, the
transaction will be void; for the matter is referred to the Praetor
to be examined, and not to be neglected, or given up. If, however,
he does not make inquiry about everything which he is directed to
do by the Address; that is to say, about the cause, the amount, and
the character of the parties to the transaction, it must be held that
even though he investigates some matters, the compromise is void.
(18) Neither the Governor of the province, nor the Praetor
can delegate his jurisdiction in a matter of this kind.
(19) Compromises with respect to maintenance can also be
made in the presence of the Imperial Procurator; for example, where
maintenance is claimed from the Treasury, and hence this can be done
in the presence of the Prefect of the Treasury.
(20) Where an action is pending with reference to provision
for maintenance, and a compromise is made, it will not be valid without
the authority of the Praetor; as otherwise the Address of the Emperor
might be evaded; for pretended suits could be brought, in order that
a compromise might be arranged without the consent of the Praetor.
(21) Where provision for maintenance is left to anyone, and
in addition to this a legacy which is to be paid immediately, and
a compromise is made without the authority of the Praetor; whatever
may be paid is first credited on the legacy which was made payable
without delay, and the remainder on the provision for maintenance.
(22) Where anyone makes a compromise with reference to maintenance,
without the authority of the Praetor, whatever is paid will be applied
to the settlement of what is due on the maintenance; for it makes
no difference how much the arrears were, or whether they were more
or less than the amount paid; for if they are less, still the payment
must be credited on the arrears of the provision for maintenance.
And it is clear that if he who made the compromise
with respect to maintenance, became more wealthy by the payment, it
will be perfectly just that the other party should have an action
to recover the amount by which he became more wealthy, for no one
ought to profit by the loss of another.
(23) Where a certain sum to be paid annually, as, for instance,
an annual pension or an usufruct has been left by anyone to a man
of superior rank, a compromise can be made without the authority of
the Praetor. But, if a moderate usufruct has been left, instead of
a provision for maintenance, I say that a compromise made without
the authority of the Praetor is of no force or effect.
(24) Where provision has been made for the maintenance of
a person, not in money but in grain, oil, and other articles which
are necessary for subsistence, a compromise cannot be arranged with
respect to them, whether the payments are to be made to him annually,
or monthly. Where, however, the compromise made without the Praetor's
authority was, that he should, instead of the articles, receive a
certain sum of money payable either annually, or monthly, and neither
the date nor the amount was changed, but only the nature of the article;
or if, on the other hand, he agreed to receive subsistence in kind,
which had been left to him in money; as where he changed wine for
oil, or oil for wine, or anything else of this description; or changed
the place so as to receive the provision left to him at Rome, in some
town, or in some province, or vice versa; or if he changed
the person, so as to receive from one what he should have received
from several; or accepts one debtor instead of another; all these
things must be submitted to the decision of the Praetor, and be determined
for the benefit of the party entitled to maintenance.
(25) Where a certain sum, payable annually for lodging, has
been left, any transaction which is entered into for the furnishing
of lodging without the authority of the Praetor is valid; since the
party obtains the benefit of the lodging, although the compromise
may afford a lodging liable to demolition, or fire. On the other hand
also, if he agrees that a stated sum shall be paid him instead of
the lodging which was bequeathed, the transaction is valid, even without
the Praetor's authority.
9. The Same, Opinions, Book I.
A party brought an action against his guardians with reference
to his share of the estate administered under their guardianship,
and compromised the case. If, having become an heir of his brother,
he brought suit against the same guardians as his brothers' representative,
he will not be barred by their pleading the compromise which was effected.
(1) Where a compromise of any description is made, it is
considered to be restricted to those matters concerning which the
parties have agreed among themselves.
(2) Where a party, being ignorant of all the existing conditions
of the case through the deceit of his co-heir, executed an instrument
of compromise without the Aquilian stipulation, he is held rather
to have been deceived than to have made an agreement.
(3) Where a son who is not yet informed that he has a right
to bring an action to set aside the will of his father, compromises
other matters with his adversaries by an agreement; the agreement
which he entered into will only prejudice him with reference to such
things as it is proved that they were intended to do, even though
one party who made the compromise was over twenty-five years of age;
for, as far as relates to anything ascertained afterwards for which
he was entitled to bring an action, it would be unjust to hold that
the transaction extinguished rights which had not yet been considered.
10. The Same, Opinions, Book I.
It is settled that where a father makes a compromise with
reference to the rights of sons who are not under his control, they
are not prejudiced by it.
11. The Same, On the Edict, Book IV.
After judgment has been rendered, even if no appeal is taken,
still, where the fact that judgment has been rendered is denied, or
it is possible for the party to be ignorant whether the judgment was
rendered or not; then, as a trial may still take place, a compromise
can be effected.
12. Celsus, Digest, Book III.
It should not be tolerated that a party may make a compromise
with reference to legacies left to him in general terms by will, and
afterwards claim that his object was not to compromise except with
reference to what was left him in the first part of the will, and
not with reference to what was left him in the last part. But where
codicils are produced, I think that he could not improperly say to
me that he only was thinking about what was contained in those pages
of the will of which he knew at the time of the transaction.
13. Aemilius Macer, On the Five Per Cent Law Respecting
Inheritances, Book I.
It is not lawful for an Imperial Procurator to make a compromise
without the authority of the Emperor.
14. Scaevola, Opinions, Book II.
A controversy arose between an heir-at-law and a testamentary
heir, and a compromise having been made, the matter was settled under
certain conditions. I desire to know against whom the creditors can
bring an action. The answer was that if the creditors were the same
who made the compromise, whether others were present or not, on account
of the uncertainty of the succession, an action should be brought
against each one of the heirs for the share of the estate which each
obtained by virtue of the compromise.
15. Paulus, Sentences, Book I.
It is customary for the Aquilian stipulation to be inserted
in every contract, but it is more prudent to add to it a penal stipulation,
because if the contract is rescinded, suit can be brought for the
penalty under the stipulation.
16. Hermogenianus, Epitomes of Law, Book I.
He who breaks faith in a lawful compromise is not only barred
by an exception, but also can be forced to pay the penalty which he
has promised in proper form to pay to the stipulator if he violated
the contract.
17. Papinianus, Questions, Book II.
The vendor of an estate having assigned his rights to the
purchaser, made a compromise with a debtor to the estate who did not
know that it had been sold. The purchaser of the estate should take
measures to collect the debt, and an exception on the ground of business
transacted is granted the debtor because of his ignorance. The same
rule applies to the case of a man who received an estate by virtue
of a trust, if the heir makes a compromise with a debtor who is not
aware that this has been done.