TITLE XVII.-OF THE STIPULATION OF SLAVES.

Pr. A slave was competent stipulari (1), i.e., have a promise made to him in right of his master; in fact, he had the same capacity stipulari as the person on whom he was dependent.

The slave who belonged to a hæreditas not yet accepted (adita) might have a promise made to him in right of the deceased, just as if he were living, because the hæreditas represented the person of the deceased (2).

§ 1. Whether the promise was made to the slave expressly for his master, or for himself, or for another slave of the same master, or whether it was made to him, without specifying any one, the benefit of the obligation always belonged to the master (3).

§ 2. But when the slave stipulated for something personal to himself; e.g., that he should have a right of passage, the master did not acquire the right promised to the slave: on the contrary, the licence was to the person of the stipulator or promissee himself (ut SIBI (4) liceat); and the promissor, who was not bound to allow any one but the slave to pass, might refuse a passage to any one else, even to the master. Nevertheless, the master obtained the benefit of the stipulatio in this way, that he might insist upon having his slave pass, and might sue ex stipulatu to compel the promissor to fulfil his obligation.

§ 3. When the slave-stipulator or promissee belonged to several masters, each of them was entitled to the benefit of the stipulatio, according to the share which he had in the slave, unless the stipulatio was made by direction of one only, or on behalf of one of them by name; for he alone was then entitled to the benefit of the stipulatio. So, also, we except the case where one of the masters was incapable of taking advantage of the stipulatio; as, for example, when he was already owner of that which the promissor had bound himself to give. Lastly, if the slave named his master, as by saying, Do you promise to give Titius and Seius? the benefit of the stipulatio was divided, not according to the amount of each master's property in the slave but equally between them.

(1) Stipulari, to have a promise made to him, but not to bind himself or his master, unless the slave was acting by his master's command, or in the management of his own peculium; in these cases, however, the matter could be sued for only by prætorian action (B. 4, t. 7).

(2) There were exceptions (in plerisque). Thus, in order to acquire an hæreditas, of which the slave was hæres institutus, he required an order (B. 2, t. 9); to obtain

which he had to wait until the hæres the new master had accepted the hæreditas of the slave's deceased master.

(3) So it was with filii-familias (B. 2, t. 9).

(4) But the slave might stipulate for his master to pass, whereby a servitude would vest in the master. The case in the text is a personal licence, and does not attach to the land.

TITLE XVIII.-OF THE VARIOUS KINDS OF STIPULATIONS.

Pr. Stipulations are divided into conventional, judicial, prætorian, and common, i.e., those both judicial and prætorian.

§3. The name Conventional stipulations applies to those voluntarily created by the parties, without the interference of a judex or the Prætor (1).

Judicial stipulations are those which a judex (2) alone had power to direct to be concluded. Such are stipulations de dolo cautio, de persequendo servo qui in fugâ est, restituendove pretio.

§ 1. The stipulatio de dolo cautio was directed by the judex, in order to provide the demandant with a security (cautio) that the judgment given in his favour should be executed without fraud on the defendant's part. Thus the judex, whilst condemning Titius to give me a slave, the property in which he has unjustly refused to transfer to me, would direct him to give security by stipulatio, that he has done no fraudulent act to lessen the value of the slave; for Titius, though he gave me the slave, might give him in a deteriorated condition, e.g., poisoned. The same security was required of a defendant condemned to transfer a thing to a proprietor who had brought a real action for it (D. 6, 1, 20, 45).

As to the stipulatio de persequendo servo qui in fugâ est, restituendove pretio. Suppose vindicatio brought for the property in a slave, the property in which has, during the suit, vested by usucapio in the holder; and suppose the slave escape before judgment, not by any complicity of the defendant, but by some act of negligence on his part, it is clear he cannot be compelled to deliver what he has not got; but being proprietor, and, as such, alone capable of following the slave, and claiming him back, the judex directs him to become bound by stipulatio to pursue the slave in order to recover the same (de persequendo servo), and to deliver him over or to pay his value (restituendove pretio). If the defendant has not even been guilty of negligence, he is only bound to promise that the slave shall be delivered up when he again comes under his control, and to assign his rights of action to the demandant, who will exercise them at his own risk (D. 4, 2, 14, 11).

§ 2. Prætorian stipulations were those which could be concluded only by order of the Prætor, and not of the judex; e.g., those damni infecti and legatorum. Under the Prætorian we include the ædilitian stipulations, viz., those contracted by order of the ædiles; for they, like those

(1) Of such stipulations there were as many as there were things to be contracted for (§ 3); the others were decreed

only under certain circumstances.

(2) Before a judex the parties were in judicio, before the Prætor in jure.

ordained by the Prætor, emanate from a magistrate jusdicens (a jurisdictione) (1).

The stipulatio damni infecti (imminent danger) was used when the proprietor of something dangerously defective, e.g., an insecure house, was obliged by the Prætor to guarantee his neighbour against the damage wherewith he was threatened (2). If the proprietor refused to undertake this liability, the Prætor put the demandant in possession of the house.

§ 2. The cautio legatorum was the stipulatio decreed by the Prætor, on demand of the legatees, by which the hæres guaranteed the execution of those legacies which were not to be immediately executed; for without this guarantee the hæres might squander the whole estate and become insolvent, whilst the legatees were incapable of suing before the term expired or the condition was fulfilled.

§ 4. Common stipulations are those which may be decreed either by the Prætor (in jure) or by the judex (in judicio): such as stipulations rem salvam fore pupilli and de rato.

The former was that by which the tutor and the fidejussores (tutor's sureties) guaranteed the preservation of the pupil's fortune (B. 1, t. 24). This guarantee was given before the tutor entered on his functions, and it was the Prætor's duty to see it provided. But it sometimes happened that a tutor sued the debtor of a pupillus, and brought him, in course of the actio, before a judex, such tutor having neglected to furnish this cautio; now, if the defendant took this objection, the suit could not proceed; but to remove the difficulty (si aliter expediri non potest), the juder might direct the tutor to enter into a stipulatio rem pupilli, &c.

The stipulatio de rato or ratam rem haberi was required from a procurator, who conducted a suit in another's name; by it the procurator was bound to obtain the ratification of him whose cause he had taken in hand. Properly, it was directed to be given by the Prætor before the litis contestatio; but if this had been neglected, and there was reason to doubt the existence of the authority (procuratio) which the demandant claimed, the judex in the case might direct the security to be given (B. 4, t. 11).

(1) It was an ædilitian stipulation, by which the vendor was compelled to guarantee that the article sold was free from a particular defect.

(2) Observe, injury to another by property of mine does not raise a direct claim against me, for nothing can be de

manded from me if I abandon the cause of the damage (B. 4, t. 8, 9). Thus, if my house fall on my neighbour's land he has no direct action against me. And this is why the Prætor compels me beforehand to promise him an indemnity.

R

TITLE XIX.-OF VOID STIPULATIONS.

Stipulations were void: 1. On account of their subject-matter (Pr. §§ 1, 2, 22, 24). 2. On account of the persons by whom (§§ 7, 8, 9, 10, and 12), or for whom (§§ 3, 4, 19, 20, 21), or between whom (§ 6) they were made. 3. On account of the manner in which they were created (§§ 5, 18, 23). 4. On account of the time (§§ 13, 14, 15, 16, 26, 27), or the condition (§§ 11, 25) attached to them.

§§ 1, 22. A stipulatio was void by reason of its subject-matter when a man stipulated: 1, for some nonentity; e.g., a centaur, or for something which had ceased to be; e.g., a slave already dead (1); or 2, for something not the subject of commerce; e.g., a thing sacrum, religiosum, or publicum, or for a freeman; or 3, for something which, though the subject of commerce, could not be acquired by the stipulator (2); e.g., for something of his own, which, therefore, could not be acquired by him again; or 4, for the doing of an impossible act, or one contrary to the laws, or contra bonos mores; e.g., a parricidal or sacrilegious act (§ 24).

§ 2. In these cases the stipulatio continued void after the obstacle to its inception had ceased. Thus, even though a thing publicum or sacrum became the subject of commerce, though the freeman became a slave, though the thing stipulated for ceased to belong to the stipulator, the stipulatio continued void, at least when it was unconditional.

§ 2. Even if the stipulatio was conditional and made under the presumption that the thing stipulated for might become capable of being transferred to the stipulator, the stipulatio was still void as to things which by their nature were excluded from commerce; e.g., a freeman, a thing sacrum or publicum. But when the stipulatio was stopped in its inception by a personal and temporary obstacle, the stipulatio was valid, if, on the condition being fulfilled, the obstacle was removed, because it was only then that the obligation began to exist (p. 235). Thus there is nothing to prevent me stipulating for what is now part of my property, in case it shall cease to be mine (D. 45, t. 1, 31).

§ 2. Again a stipulatio, originally valid, became null by its becoming impossible for the stipulator to acquire the thing stipulated for. For, as a general rule, an obligation is extinguished when such a state of things arrives as would have prevented the obligation arising. If, then, the thing originally promised ceased to be in commercio, or perished

(1) But a man might stipulate for a thing about to be.

(2) Thus, a Christian slave could not belong to a Jewish master (C. 1, C. 10).

absolutely, the debtor was discharged, provided that this state of things came to pass without any neglect or any act on his part (sine facto ejus), and provided he was not behindhand; i.e., after his time in delivering the thing promised.

If the stipulator after making the stipulation acquired the subjectmatter thereof, the stipulation was not absolutely void unless the promissor had become liable from mere love and affection; and unless the stipulator had acquired the thing without valuable consideration; e.g., by becoming hæres of its owner; for in this case the stipulatio was void because duæ causæ lucrativæ (B. 2, t. 20), cannot concur in respect to the same thing, and in favour of the same person. But if valuable consideration had passed, and the debtor could not give the thing promised, he had to pay the value of it.

§ 7. A stipulatio was void on account of the contracting parties when one of them was a lunatic, an infant, deaf or dumb, or when it was made between absent persons, or one party was subject to the other.

§ 8. A lunatic was incapable, because there was no valid stipulatio without consent, which a lunatic, except in lucid intervals, could not give.

§ 9. An impubes, above the age of infancy, might stipulari, i.e., have a promise made to him; and he might if sui juris promise on obtaining his tutor's authority (1). But a filius-familias under fourteen could not bind himself even with the pater-familias' authority (§ 10).

§ 7. Dumb persons were incapable stipulari, because they could neither put a question nor give an answer. Deaf persons were incapable stipulari, because the stipulator (questioner) and promissor were required to hear each other. The same reason applies to persons absent (§ 12); for by absent we mean those who are so distant from each other as not to be able to hear each other (2).

§ 6. A stipulatio was void when one of the parties was subject to the other, because unity of interest so confounded the persons as to make them one. For, suppose a stipulatio made by a slave for his master's benefit, the master being promissor, this was as if he had made a pro

(1) According to the text (§ 10), pupilli were: 1, infantes; 2, infantiæ proximi, both being under seven years; 3, pubertati proximi, above seven. At first the third class alone were capable of contracting (on obtaining the tutor's authority, when necessary), because during the two former periods the impubes, as to intelligence, non multum a furioso distat ; but afterwards the infantiæ proximus had the same capacity to contract as the pubertati proximus. Hence the division into two periods (B. 1, t. 21, B. 4, t. 1).

(2) To avoid all fraud Justinian declared (§ 12), that when there was a writing (instrumentum) proving that a stipulatio had been made between two persons present at a particular place and time, such document should be conclusive until one of the contracting parties was proved to have passed the whole day in question elsewhere. And in order to prove this writings were necessary, because the general rule was, that parol was not admitted against written proof (C. iv, t. 20, 1. 1). The emperor, however, admitted witnesses if worthy of credit (idoneos).