The Institutes of Justinian Part 15

t.i.tLE XVI. OF STIPULATIONS IN WHICH THERE ARE TWO CREDITORS OR TWO DEBTORS

There may be two or more parties on either side in a stipulation, that is to say, as promisors or promisees. Joint promises are so const.i.tuted by the promisor answering, 'I promise,' after they have all first asked the question; for instance, if after two promises have separately stipulated from him, he answers, 'I promise to give so and so to each of you.' But if he first promises to t.i.tius, and then, on another's putting the question to him, promises to him too, there will be two distinct obligations, namely, one between him and each of the promisees, and they are not considered joint promisees at all. The usual form to const.i.tute two or more joint promisors is as follows,--'Maevius, do you promise to give five aurei? Seius, do you promise to give the same five aurei?' and in answer they reply separately, 'I promise.'

1 In obligations of this kind each joint promisee is owed the whole sum, and the whole sum can be claimed from each joint promisor; and yet in both cases but one payment is due, so that if one joint promisee receives the debt, or one joint promisor pays it, the obligation is thereby extinguished for all, and all are thereby released from it.

2 Of two joint promisors one may be bound absolutely, while performance by the other is postponed to a future day, or made to depend on a condition; but such postponement or such condition in no way prevents the stipulator from at once suing the one who was bound absolutely.

t.i.tLE XVII. OF STIPULATIONS MADE BY SLAVES

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

1 All that a slave acquires by a stipulation he acquires for his master only, whether it was to that master, or himself, or his fellow slave, or no one in particular that performance was to be made under the contract; and the same principle applies to children in power, so far as they now are instruments of acquisition for their father.

2 When, however, what is stipulated for is permission to do some specific act, that permission cannot extend beyond the person of the promisee: for instance, if a slave stipulates for permission to cross the promisor's land, he cannot himself be denied pa.s.sage, though his master can.

3 A stipulation by a slave belonging to joint owners enures to the benefit of all of them in proportion to the shares in which they own him, unless he stipulated at the bidding, or expressly in favour, of one of them only, in which case that one alone is benefited. Where a jointly owned slave stipulates for the transfer of property which cannot be acquired for one of his two masters, the contract enures to the benefit of the other only: for instance, where the stipulation is for the transfer of a thing which already belongs to one of them.

t.i.tLE XVIII. OF THE DIFFERENT KINDS OF STIPULATIONS

Stipulations are either judicial, praetorian, conventional, or common: by the latter being meant those which are both praetorian and judicial.

1 Judicial stipulations are those which it is simply part of the judge's duty to require; for instance, security against fraud, or for the pursuit of a runaway slave, or (in default) for payment of his value.

2 Those are praetorian, which the praetor is bound to exact simply in virtue of his magisterial functions; for instance, security against apprehended damage, or for payment of legacies by an heir. Under praetorian stipulations we must include also those directed by the aedile, for these too are based upon jurisdiction.

3 Conventional stipulations are those which arise merely from the agreement of the parties, apart from any direction of a judge or of the praetor, and which one may almost say are of as many different kinds as there are conceivable objects to a contract.

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

t.i.tLE XIX. OF INVALID STIPULATIONS

Anything, whether movable or immovable, which admits of private owners.h.i.+p, may be made the object of a stipulation; 1 but if a man stipulates for the delivery of a thing which either does not or cannot exist, such as Stichus, who is dead but whom he though alive, or an impossible creature, like a hippocentaur, the contract will be void.

2 Precisely the same principles applies where a man stipulates for the delivery of a thing which is sacred or religious, but which he thought was a subject of human owners.h.i.+p, or of a thing which is public, that is to say, devoted in perpetuity to the use and enjoyment of the people at large, like a forum or theatre, or of a free man whom he thought a slave, or of a thing which he is incapable of owning, or which is his own already. And the fact that a thing which is public may become private property, that a free man may become a slave, that the stipulator may become capable of owning such and such a thing, or that such and such a thing may cease to belong to him, will not avail to merely suspend the force of the stipulation in these cases, but it is void from the outset. Conversely, a stipulation which originally was perfectly good may be avoided by the thing, which is its object, acquiring any of the characters just specified through no fault of the promisor. And a stipulation, such as 'do you promise to convey Lucius t.i.tius when he shall be a slave' and others like it, are also void from the beginning; for objects which by their very nature cannot be owned by man cannot either in any way be made the object of an obligation.

3 If one man promises that another shall convey, or do so and so, as, for instance, that t.i.tius shall give five aurei, he will not be bound, though he will if he promises to get t.i.tius to give them.

4 If a man stipulates for conveyance to, or performance in favour of, another person who is not his paterfamilias, the contract is void; though of course performance to a third person may be bargained for (as in the stipulation 'do you promise to give to me or to Seius?'); where, though the obligation is created in favour of the stipulator only, payment may still be lawfully made to Seius, even against the stipulator's will, the result of which, if it is done, being that the promisor is entirely released from his obligation, while the stipulator can sue Seius by the action of agency. If a man stipulates for payment of ten aurei to himself and another who is not his paterfamilias, the contract will be good, though there has been much doubt whether in such a case the stipulator can sue for the whole sum agreed upon, or only half; the law is now settled in favour of the smaller sum. If you stipulate for performance in favour of one in your power, all benefit under the contract is taken by yourself, for your words are as the words of your son, as his words are as yours, in all cases in which he is merely an instrument of acquisition for you.

5 Another circ.u.mstance by which a stipulation may be avoided is want of correspondence between question and answer, as where a man stipulates from you for payment of ten aurei, and you promise five, or vice versa; or where his question is unconditional, your answer conditional, or vice versa, provided only that in this latter case the difference is express and clear; that is to say, if he stipulates for payment on fulfilment of a condition, or on some determinate future day, and you answer: 'I.

promise to pay today,' the contract is void; but if you merely answer: 'I promise,' you are held by this laconic reply to have undertaken payment on the day, or subject to the condition specified; for it is not essential that every word used by the stipulator should be repeated in the answer of the promise.

6 Again, no valid stipulation can be made between two persons of whom one is in the power of the other. A slave indeed cannot be under an obligation to either his master or anybody else: but children in power can be bound in favour of any one except their own paterfamilias.

7 The dumb, of course, cannot either stipulate or promise, nor can the deaf, for the promisee in stipulation must hear the answer, and the promisor must hear the question; and this makes it clear that we are speaking of persons only who are stone deaf, not of those who (as it is said) are hard of hearing.

8 A lunatic cannot enter into any contract at all, because he does not understand what he is doing.

9 On the other hand a pupil can enter into any contract, provided that he has his guardian's authority, when necessary, as it is for incurring an obligation, though not for imposing an obligation on another person.

10 This concession of legal capacity of disposition is manifestly reasonable in respect of children who have acquired to some understanding, for children below the age of seven years, or who have just pa.s.sed that age, resemble lunatics in want of intelligence. Those, however, who have just completed their seventh year are permitted, by a beneficent interpretation of the law, in order to promote their interests, to have the same capacity as those approaching the age of p.u.b.erty; but a child below the latter age, who is in paternal power, cannot bind himself even with his father's sanction.

11 An impossible condition is one which, according to the course of nature, cannot be fulfilled, as, for instance, if one says: 'Do you promise to give if I. touch the sky with my finger?' But if the stipulation runs: 'Do you promise to give if I do not touch the sky with my finger?' it is considered unconditional, and accordingly can be sued upon at once.

12 Again, a verbal obligation made between persons who are not present with one another is void. This rule, however, afforded contentious persons opportunities of litigation, by alleging, after some interval, that they, or their adversaries, had not been present on the occasion in question; and we have therefore issued a const.i.tution, addressed to the advocates of Caesarea, in order with the more dispatch to settle such disputes, whereby it is enacted that written doc.u.ments in evidence of a contract which recite the presence of the parties shall be taken to be indisputable proof of the fact, unless the person, who resorts to allegations usually so disgraceful, proves by the clearest evidence, either doc.u.mentary or borne by credible witnesses, that he or his adversary was elsewhere than alleged during the whole day on which the doc.u.ment is stated to have been executed.

13 Formerly, a man could not stipulate that a thing should be conveyed to him after his own death, or after that of the promisor; nor could one person who was in another's power even stipulate for conveyance after that person's death, because he was deemed to speak with the voice of his parent or master; and stipulations for conveyance the day before the promisee's or promisor's decease were also void. Stipulation, however, as has already been remarked, derive their validity from the consent of the contracting parties, and we therefore introduced a necessary emendation in respect also of this rule of law, by providing that a stipulation shall be good which bargains for performance either after the death, or the day before the death, of either promisee or promisor.

14 Again, a stipulation in the form: 'Do you promise to give today, if such or such a s.h.i.+p arrives from Asia tomorrow?' was formerly void, as being preposterous in its expression, because what should come last is put first. Leo, however, of famous memory held that a preposterous stipulation in the settlement of a dowry ought not to be rejected as void, and we have determined to allow it perfect validity in every case, and not merely in that in which it was formerly sanctioned.

15 A stipulation, say by t.i.tius, in the form: 'Do you promise to give when I shall die' or 'when you shall die'? is good now, as indeed it always was even under the older law.

16 So too a stipulation for performance after the death of a third person is good.

17 If a doc.u.ment in evidence of a contract states that so and so promised, the promise is deemed to have been given in answer to a preceding question.

18 When several acts of conveyance or performance are comprised in a single stipulation, if the promisor simply answers: 'I promise to convey,' he becomes liable on each and all of them, but if he answers that he will convey only one or some of them, he incurs an obligation in respect of those only which are comprised in his answer, there being in reality several distinct stipulations of which only one or some are considered to have acquired binding force: for for each act of conveyance or performance there ought to be a separate question and a separate answer.

19 As has been already observed, no one can validly stipulate for performance to a person other than himself, for the purpose of this kind of obligation is to enable persons to acquire for themselves that whereby they are profited, and a stipulator is not profited if the conveyance is made to a third person. Hence, if it be wished to make a stipulation in favour of any such third person, a penalty should be stipulated for, to be paid, in default of performance of that which is in reality the object of the contract, to the party who otherwise would have no interest in such performance; for when one stipulates for a penalty, it is not his interest in what is the real contract which is considered, but only the amount to be forfeited to him upon nonfulfilment of the condition. So that a stipulation for conveyance to t.i.tius, but made by some one else, is void: but the addition of a penalty, in the form 'If you do not convey, do you promise to pay me so many aurei?' makes it good and actionable.

20 But where the promisor stipulates in favour of a third person, having himself an interest in the performance of the promise, the stipulation is good. For instance, if a guardian, after beginning to exercise his tutorial functions, retires from their exercise in favour of his fellow guardian, taking from him by stipulation security for the due charge of the ward's property, he has a sufficient interest in the performance of this promise, because the ward could have sued him in case of maladministration, and therefore the obligation is binding. So too a stipulation will be good by which one bargains for delivery to one's agent, or for payment to one's creditor, for in the latter case one may be so far interested in the payment that, if it not be made, one will become liable to a penalty or to having a foreclosure of estates which one has mortgaged.

21 Conversely, he who promises that another shall do so and so is not bound unless he promises a penalty in default;

22 and, again, a man cannot validly stipulate that property which will hereafter be his shall be conveyed to him as soon as it becomes his own.

23 If a stipulator and the promisor mean different things, there is no contractual obligation, but it is just as if no answer had been made to the question; for instance, if one stipulates from you for Stichus, and you think he means Pamphilus, whose name you believed to be Stichus.

24 A promise made for an illegal or immoral purpose, as, for instance, to commit a sacrilege or homicide, is void.

25 If a man stipulates for performance on the fulfilment of a condition, and dies before such fulfilment, his heir can sue on the contract when it occurs: and the heir of the promisor can be sued under the same circ.u.mstances.

26 A stipulation for a conveyance this year, or this month, cannot be sued upon until the whole year, or the whole month, has elapsed:

27 and similarly the promisee cannot sue immediately upon a stipulation for the conveyance of an estate or a slave, but only after allowing a sufficient interval for the conveyance to be made.