1Ulpianus, On the Edict, Book XXVI. It is proper before we proceed to the interpretation of the terms to say something concerning the signification of the Title itself. 1As the Prætor has inserted under this Title many rules having reference to various contracts, he has, therefore, prefixed to the Title the words “Things which are credited,” for this includes all kinds of contracts which we enter into, relying upon the good faith of others; for, as Celsus states in the First Book of Questions, the term “to credit” is a general one, and hence under this Title the Prætor treats of property loaned and pledged. For where we, relying upon the good faith of others, assent to anything, and are afterwards to receive something on account of this contract, we are said to give credit. The Prætor selected the term “thing” also as being a general one.

2Paulus, On the Edict, Book XXVIII. We make the loan called mutuum when we are not to receive in return the same article which we gave (otherwise this would be a loan for use or a deposit) but something of the same kind; for if it was of some other kind, as for instance, if we were to receive wine for grain, it would not come under this head. 1A gift of mutuum has reference to articles which can be weighed, counted, or measured, since people by giving these can contract a credit; because by payment in kind they perform the contract instead of paying in specie. For we cannot contract a credit with respect to other articles, because the creditor cannot be paid by giving him one thing in exchange for another, where he does not give his consent. 2A loan of this kind is so called mutuum. because the article becomes yours instead of mine, and therefore it does not become yours if the obligation does not arise. 3Therefore a credit differs from a mutuum just as a genus differs from a species; for a credit may exist separate from articles which can be weighed, counted, or measured, so that it is a credit where we are to receive the very same article in return. Moreover, a mutuum cannot exist in the case of money unless the money is paid down, but a credit can sometimes exist even though nothing is paid; as, for instance, where a dowry is promised after marriage. 4In a loan of this kind he who makes it must be the owner, and no objection can be raised because sons under paternal control and slaves can cause an obligation to arise by loaning money which is part of their peculium; for it is the same thing as if you pay money at my request, for I would then acquire a right of action even though the money did not belong to me. 5We can also give credit by means of words, where some act is performed for the purpose of creating an obligation, as, for instance, a stipulation.

3Pomponius, On Sabinus, Book XXVII. Where we give a mutuum, although we do not provide that what is equally good shall be returned to us, still it is not lawful for the debtor to restore an article of the same kind but which is inferior, for example, to return new wine instead of old; for in entering into a contract the intention of the parties must be considered equivalent to an express agreement, and in this instance the intention is understood to be that payment shall be made with an article of the same kind, and of the same quality as that which was loaned.

4Ulpianus, On Sabinus, Book XXXIV. Where a party has no reason or intention to lend at interest, but you being about to purchase certain land, desire to borrow money, although you do not desire to do so until you actually buy the property, and the creditor having perhaps some urgent need to go upon a journey, deposits the money with you on the condition that if you make the purchase you will be liable on account of the credit, this deposit is at the risk of the party who received it; for where anyone receives something for the purpose of selling it in order to make use of the purchase-money, he will hold the property at his own risk. 1Where an article is given in pledge, and the money advanced is paid, suit can be brought for its recovery. Again, if a tenant gathers crops after the period of five years has elapsed, it is established that they can be recovered by a personal action, provided they have not been gathered with the consent of the owner of the land; for if this has been done, then there is no doubt that an action for their recovery will not lie. 2Ad Dig. 12,1,4,2ROHGE, Bd. 22 (1878), Nr. 66, S. 299: Cond. possessionis gegen den aus Irrthum Besitzenden. Besitz ein Vermögensobject.Things which have been carried on shore by the force of a stream can also be recovered by a personal action.

5Ad Dig. 12,1,5ROHGE, Bd. 15 (1875), Nr. 102, S. 363, 371: Feststellung des Zeitpunkts des Verzugs mit Rücksicht auf die subjective Auffassung des Säumigen über die Sachlage.Pomponius, On Sabinus, Book XXII. Ad Dig. 12,1,5 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 371, Note 8.If you are obliged to deliver something to me, and it should afterwards be lost on account of some act of yours which prevented you from delivering it to me, it is established that the loss must be borne by you. Where, however, the question arises whether you performed the act, it should be considered not only whether this was in your power or not, but also whether you were guilty of malicious intent in order to prevent it from being in your power; and also whether there was any just reason why you should know that you were compelled to deliver me the article.

6Paulus, On the Edict, Book XXVIII. An article is styled “certain” when the kind or quality which is the subject of an obligation is specifically designated either by name or by some description which performs the function of a name, and its quality and quantity are made manifest. Pedius states in the First Book of Stipulations, that it makes no difference whether anything is called by its own name, or pointed out with a finger, or described in so many words, since these methods perform common functions, any one of which is as good as another.

7Ulpianus, On the Edict, Book XXVI. Everything which can be inserted in a stipulation may also be included in the loaning of money, and therefore conditions may be imposed.

8Pomponius, On Plautius, Book VI. Hence a gift of mutuum sometimes remains in abeyance, in order to be confirmed by some subsequent act; as, for example, if I loan you a sum of money with the understanding that if a certain condition takes place, it will become yours and you shall be bound to pay me. In like manner, where an heir lends money which has been bequeathed as a legacy, and the legatee afterwards is unwilling to take it, for the reason that it is held that the money was the property of the heir from the day the estate was entered upon, he can bring an action to recover the money which was loaned. For Julianus says that even where delivery of property has been made by the heir, reference must be had to the time when the estate was entered upon, whether the legacy is rejected or accepted.

9Ulpianus, On the Edict, Book XXVI. Ad Dig. 12,1,9 pr.ROHGE, Bd. 9 (1873), S. 33: Klagen auf Feststellung eines obligatorischen Verhältnisses.A specific action for recovery will lie on account of everything and by reason of any obligation under which a positive claim can be made; whether it is based on an express contract or on one which is uncertain, for we are permitted to bring such an action on account of every kind of contract, provided an actual obligation exists; but where enforcement of the obligation is limited to a specified date, or is dependent upon some condition, I cannot bring an action before the time arrives, or the condition is fulfilled. 1This action will also lie on account of a legacy or under the Lex Aquilia, and proceedings may be instituted by means of it in a case of theft. Moreover, if proceedings are instituted under a decree of the Senate, this action will still lie; as, for instance, where the party who wishes to bring suit is one to whom an estate held in trust is to be delivered. 2This action may also properly be brought where anyone has bound himself either in his own behalf or as the agent of the other. 3Since, therefore, this specific action for recovery is available in all contracts, whether the contract was made by an act, by words, or by both together, certain cases must be mentioned by us with relation to which it may be discussed as to whether this action will be appropriate to the claims set forth. 4I paid you ten aurei, and I stipulated that the amount should be given to another party; which stipulation is void. Can I proceed by means of this action to recover ten aurei on the ground that there are two contracts existing, one which was entered into by means of an act, that is to say, by the payment of the money, and the other which was entered into verbally, that is to say without effect, because I could not stipulate for another? I think that I can. 5The case is the same where I took a stipulation from a ward without the authority of his guardian, and loaned him money with his guardian’s consent; for, in this instance also, I shall be entitled to a suit for recovery based on the payment of the money. 6The same inquiry may be made if I paid you a certain sum of money and I stipulated that it should be returned under a condition which is impossible; since the action for recovery will still remain available, as the stipulation is null. 7Moreover, where I lend a man money and his property is afterwards placed under an interdict, and I then enter into a stipulation with him, I think that his case resembles that of the ward; since he also acquires rights by stipulation. 8Ad Dig. 12,1,9,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 313, Note 6; Bd. II, § 370, Note 12.Where I pay out my own money in your name, you being absent at the time and not aware of the fact, Aristo says that you will have a right to bring a personal action for recovery; and Julianus also, having been consulted with respect to this, states that the opinion of Aristo is correct, and that there is no doubt that if I should pay out my money in your name with your consent the obligation will be acquired by you, as we ask every day that money shall be lent by other parties in our name to those whom we wish to become our debtors. 9I deposited ten aurei with you, and afterwards I permitted you to make use of them; Nerva and Proculus are of the opinion that I will be entitled to a personal action for recovery, as for a mutuum, even before you have removed the money, and this is correct, and also appears so to Marcellus; for on account of your intention you have already become the possessor, and therefore the risk is transferred to the party who requested the loan, and he can be sued for its recovery.

10The Same, On the Edict, Book II. If, however, when I deposited the money with you in the beginning, I permitted you to make use of it, if you wished to do so; it is held that the loan does not exist before the money is removed, since it is not certain that anything is owing.

11The Same, On the Edict, Book XXVI. Ad Dig. 12,1,11 pr.ROHGE, Bd. 4 (1872), S. 396: Hingabe von Werthpapieren als Darlehn mit der Verpflichtung der Restitution baaren Geldes.Where you asked me to lend you money, and, as I did not have it at the time, I gave you a dish or a lump of gold for you to sell and make use of the proceeds; and you sold it, I think that the money received for it constitutes a loan. But if, before you sold the dish or the lump of gold, you lost it through no negligence on your part, the question arises whether the loss falls upon me or upon you. It is my opinion that the distinction made by Nerva is perfectly correct, who thinks that it makes a great difference whether I had the dish or the lump of gold for sale or not, and that if I had, I must bear the loss just as if I had given it to someone else to be sold; but if it was not my intention to sell it, but the only object of the sale was that you might make use of the proceeds, you must be responsible for the loss especially if I lent it to you without interest. 1If I loan you ten aurei with the understanding that you shall owe me nine, Proculus very correctly says that you do not legally owe me any more than nine. But if I loan you that amount with the understanding that you shall owe me eleven, Proculus thinks that an action for recovery cannot be brought for more than ten. 2Where a fugitive slave lends you money, the question arises whether his owner can bring suit against you for its recovery? And, indeed, if my slave, who has been granted the management of his peculium, lends you money, the loan will stand; but where a fugitive slave, or any other slave lends money without the consent of his master, it does not pass to the party receiving it. What then is to be done? The money can be claimed, if it is still accessible, or if you have fraudulently relinquished possession of the same proceedings can be instituted for its production; but if you have expended it without fraudulent intent, an action for its recovery can be brought against you.

12Pomponius, On Plautius, Book VI. Where you receive money as a loan from an insane person, who you think is of sound mind, and the money is expended for your benefit, Julianus says the insane person will have a right of action for its recovery; for it is the rule that where a right of action is acquired by a party who is unaware of the fact, it is also, under the same circumstances, acquired by one who is insane. Moreover, if anyone makes a loan to a slave and afterwards becomes insane, and the slave spends the money for the benefit of his master, an action for recovery can be brought in the name of the insane person. And where any one loans the money of another, and subsequently becomes insane, and the money is expended, the right to sue for its recovery is acquired by the insane person.

13Ulpianus, On the Edict, Book XXVI. Where a thief lets you have money as a loan, he does not transfer to you the property in the same; but if the money is expended, a right to bring suit for its recovery will arise. 1Wherefore, Papinianus says in the Eighth Book of Questions, “If I lend you money belonging to someone else, you are not liable to me in an action before you spend it.” And he asks if you spend the money a little at a time, whether I have a right to sue for its recovery in the same way? He replies that I have, if I had been notified that the money belonged to another, and I then bring suit for part of it; because I have not yet ascertained whether the entire amount has been expended. 2Where a slave held in common by two joint-owners loans ten aurei, I think that whether he has been granted the management of his own peculium or not, if the money is spent, an action for five aurei will lie in favor of each owner. For Papinianus states in the Eighth Book of Questions, that if I lend you a hundred pieces of money which I own in common with another, I can bring a personal action to recover fifty, even though each individual coin was owned in common.

14Ad Dig. 12,1,14Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 373, Note 16.The Same, On the Edict, Book XXIX. Where a son under paternal control having borrowed money in violation of the Decree of the Senate pays it, no exception can be pleaded against a suit brought by the father for the recovery of the money; but, where it has been expended by the creditor, Marcellus says that the personal action for recovery will not lie, since such a suit is only granted where the money was paid over under such circumstances as would permit an action to be brought if the ownership had been transferred to the party who received the money, but this is not the case in the proposed instance. Finally, where money is loaned contrary to the Decree of the Senate, and is repaid by mistake, the better opinion is that no action for its recovery will lie.

15Ad Dig. 12,1,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 26, Note 3; Bd. II, § 370, Noten 10, 11.The Same, On the Edict, Book XXXI. There are certain special rules which have been adopted with reference to money loaned; for if I order a debtor of mine to pay you money, you will become responsible to me, even though the money which you receive was not mine. Therefore, this rule being established with reference to two persons, it must also be observed where there is but one; so that, where you owe me money on account of a mandate, and it is agreed between us that you shall retain it as a loan, it is held that the money was paid to me and transferred from me to you.

16Paulus, On the Edict, Book XXXII. Where a joint-owner of money paid out his own money as a loan, he makes an absolute loan of said money, even though his co-owners did not consent; but if he paid out money which was owned in common, he does not make a valid loan, unless the others also consent, because he has only the right to dispose of his own share.

17Ulpianus, Disputations, Book I. Where a son under parental control who was at Rome for the purpose of pursuing his studies made a loan of money which was a part of his travelling expenses; Scævola gave it as his opinion that he could obtain relief by means of extraordinary proceedings.

18Ulpianus, Disputations, Book I. Ad Dig. 12,1,18 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 365, Note 5.If I give you money as a present, and you accept it as a loan, Julianus says that it is not a present; but we should consider whether it is a loan. I think, however, that it is not a loan, and that the money does not, as a matter of fact, become the property of the party who receives it, as he did so with a different opinion. Hence, if he spends the money, although he is liable to a personal action for its recovery, he can, nevertheless, make use of an exception on the ground of fraud, because the money was expended in accordance with the wish of the party who gave it. 1Where I give you money as a deposit, and you accept it as a loan, it is neither a deposit nor a loan; and the same rule applies where you give money as a loan to be consumed and I accept it as a loan to be used for the purpose of ostentation; in both instances, however, if the money is expended, there will be ground for a personal action for recovery without an exception based on fraud.

19Julianus, Digest, Book X. Ad Dig. 12,1,19 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 429, Note 2.The payment of money does not bind the party who receives it at all times, but only where it is understood that he shall be liable immediately. For where a party gives money mortis causa, he pays it out, but he does not bind him who receives it, unless something happens on which the obligation depends, as, for instance, where the donor recovered, or the party who received the money died before him. And where money is given in order that something may be done, so long as it is doubtful whether this will take place or not, liability will not exist; but, as soon as it becomes certain that it will not take place, the party who received the money will be liable; for instance, if I give Titius ten aurei under the condition that he will manumit Stichus before the next kalends, I will be entitled to no action before that time; but when the time has elapsed I can then bring suit, if the slave has not been manumitted. 1Where a ward lends money or pays it in discharge of a debt without the authority of his guardian, he has a right of action for recovery, if the money has been spent; or he will be released from the debt, for no other reason than that it is understood to have come into the hands of the party who received it through the act of the ward; therefore, if he who received the money as a loan or in payment of a debt, gives it to another party as a loan or a payment, then, if the money is spent, the party is liable to the ward, or he must discharge him from liability, and he will have a claim against the party to whom he paid the money, or he will be released from liability to him. For indeed, he who pays out the money of another as a loan, if it is spent, will have a claim against the party who received it; and likewise, he who pays out money to discharge a debt will be released from liability by the party who receives it.

20The Same, Digest, Book XVIII. Where I give you money in order that you may lend me the same money, is a loan made? I said in reply that, in instances of this kind, we do not use correct words, as such a contract is neither a donation nor a loan; it is not a donation, because the money is not given with the intention that it shall remain absolutely in the hands of the receiver; and it is not a loan because it is paid rather for the purpose of avoiding a debt than of making another party liable. Therefore, if a party who received money from me under the condition that he should lend it to me, and he does pay me the money which he receives, this will not be a loan, for I shall rather be considered to have received what already belonged to me. It must be understood in this way in order that the strict signification of the terms may be preserved; however the more liberal construction is that both transactions are valid.

21Ad Dig. 12,1,21Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 342, Note 20.The Same, Digest, Book XLVIII. Some authorities have thought that a man who sues for ten aurei cannot be forced to accept five and then bring suit for the remainder; or, if he should allege that a certain tract of land is his, that he can only be compelled to bring suit for a portion of the same; but, in both instances, it is held that the Prætor would be more indulgent if he compels the plaintiff to accept what is offered him, since it is part of his duty to diminish litigation.

22Ad Dig. 12,1,22Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 7.The Same, On Minicius, Book IV. A loan of wine was made and proceedings were instituted to recover it; the question arose with reference to the time when an estimate of its value should be made, whether when it was delivered, when issue was joined in the suit, or when the case was decided? Sabinus answered that if it had been stated at what time it was to be restored, the estimate should be made of what it was worth at that date; but if not, its value should be estimated at the time when suit was brought. I asked at what place the valuation should be made? The answer was, if it had been agreed that it should be restored at a certain place, the valuation should be made there; but if this had not been mentioned, it should be appraised at the place where suit was brought.

23Africanus, Questions, Book II. If I take possession of a slave who is bequeathed to you, and sell him just as if he had been bequeathed to me, and he dies, then, Julianus says, that you can recover the purchase money from me as I have profited by means of your property.

24Ulpianus, Pandects. Where a party stipulates for any certain property, he does not acquire a right of action under the stipulation, but he must proceed through a personal action for recovery by means of which suit is brought for some specific things.

25The Same, On the Office of Men of Consular Rank. Where a creditor lends money for the repair of buildings, he will have a prior lien on the money which he lent.

26The Same, Opinions, Book V. If the agent of a soldier lends money and takes a surety, it is established that an action will be granted the soldier to whom the money belonged; just as in the case where the guardian of a ward or the curator of a youth stipulates for the repayment of money loaned which belonged to either of them.

27Ad Dig. 12,1,27Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 370, Note 15.The Same, On the Edict, Book X. A municipal corporation can be bound by a loan, if the money is expended for its benefit; otherwise, those who contracted the loan will be liable as individuals, and not the corporation.

28Gaius, On the Provincial Edict, Book XXI. Where a creditor did not take proper security, he will not for that reason lose the right to exact payment for the amount of the debt which the pledge was not sufficient to secure.

29Ad Dig. 12,1,29Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 482, Note 7.Paulus, On Plautius, Book IV. Where an owner employs his slave as his agent, Julianus holds that it may be said that he is liable to a personal action for recovery just as if he had contracted in pursuance of the order of the party by whom he was appointed.

30The Same, On Plautius, Book V. Where a party who is about to receive a loan of money promises his future creditor that he will repay him, he has the power to escape liability by not accepting the money.

31The Same, On Plautius, Book XVII. Where a personal action has been brought for the recovery of a tract of land or a slave, I am of the opinion that the present practice is that, after issue has been joined, everything which has accrued must be surrendered; that is to say, everything which the plaintiff would have been entitled to if delivery had been made of what was due at the time of the joinder of issue. 1Ad Dig. 12,1,31,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 342, Note 45.I purchased your slave in good faith from a thief, without being aware of the facts, and the slave himself purchased a slave out of the peculium which belonged to you, and the latter slave was delivered to me. Sabinus and Cassius say that you can bring a personal action against me for the recovery of the second slave; but if I have lost anything through the business which he transacted, I, in my turn, will be entitled to an action against you. This is perfectly true for Julianus says that it must be considered whether the owner has an unimpaired right of action growing out of the purchase, but the vendor can bring a personal action for recovery against the bona fide purchaser. With reference to the money derived from the peculium, if it is still accessible, the owner can bring suit for its recovery, but he will be liable to the vendor in an action De peculio for the payment of the price; but if the money is spent, the right of action De peculio will be extinguished. Julianus, however, should have added that the vendor is only liable to the owner of the slave on account of the purchase, if he pays him the entire price, as well as whatever would have been due to him if he had made the contract with a man who is free. The same rule applies where I make a payment to a bona fide possessor, if I am ready to assign to the owner any right of action which I may have against the said possessor.

32Ad Dig. 12,1,32Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 270, Noten 10, 13, 15.Celsus, Digest, Book V. If you request Titius and myself to lend you money and I order a debtor of mine to promise to furnish it to you, and you make a stipulation believing that he is the debtor of Titius, will you be liable to me? I am in doubt on this point, if you did not enter into any contract with me, but I think it is probable that you are liable; not because I lent you money (for this cannot be unless the parties consent); but because my money came into your hands, and therefore it is proper and just that you should repay it to me.

33Modestinus, Pandects, Book X. It is provided by the Imperial Constitutions that neither those who govern provinces nor their attendants, shall go into business, or lend money with or without interest.

34Paulus, Sentences, Book II. The officials who are in attendance on the Governor of a province can make loans with or without interest. 1The Governor of a province is not forbidden to borrow money at interest.

35Modestinus, Opinions, Book III. The risk of obligations for money lent attaches to the party by whose negligence it can be established that the risk was increased.

36Javolenus, Epistles, Book I. You owed me a sum of money without any condition, and by my direction you promised Attius to pay said sum of money under a condition. While this condition is pending, your obligation toward me is just the same as if you had promised me the money on the contrary condition; if, while the condition is pending, I bring suit, will this be of no effect? The answer was: I have no doubt that the money with reference to which I stipulated with you absolutely will remain as a loan to you, even if the condition relating to Attius—who, with my consent, stipulated for the payment of said money under a condition—is not fulfilled: for the legal position is the same as if no stipulation had been made by him, and, while the fulfilment of the condition is pending, I cannot bring an action for the money, because it is uncertain whether it may not be due under the stipulation, and I will be held to have brought my action too soon.

37Papinianus, Definitions, Book I. When a condition refers to the time when the obligation was contracted, the stipulation is not suspended, and if the condition is an actual one, the stipulation will hold, even though the contracting parties do not know that this is the case; for instance: “Do you promise to pay me a hundred thousand sesterces if the King of the Parthians is living?” The same rule also applies where the condition refers to time which has passed:

38Scævola, Questions, Book I. For it should also be considered whether, as far as human nature can determine, it can be ascertained that the money will be due:

39Papinianus, Definitions, Book I. Therefore the clause only acquires the force of a condition when it relates to the future.

40Paulus, Questions, Book III. There was read in the court of Æmilius Papinianus, Prætorian Prefect and Jurist, an obligation of the following kind: “I, Lucius Titius, have stated in writing that I received from Publius Mævius fifteen aurei as a loan which was paid to me at his house, and Publius Mævius stipulated, and I, Lucius Titius, promised that the said fifteen aurei in current coin shall be duly paid on the next kalends. If on the day aforesaid the said sum shall not have been paid to the said Publius Mævius, or to whomsoever has a right to the same, nor any security has been given on account of it; then, for the time that has elapsed after payment was due, Publius Mævius stipulated and I, Lucius Titius promised that there should be paid by way of penalty, for every thirty days and for every hundred denarii one denarius. It was also agreed between us that I should be obliged to pay to the said Publius Mævius out of the sum aforesaid three hundred denarii of the entire sum every month, either to him or to his heir.” A question arose with reference to the obligation to pay interest, as the number of months specified for payment had elapsed? I stated that, as an agreement entered into at the same time is held to be a part of the stipulation, the result is that it is the same as if the party having stipulated for the payment of a certain sum of money every month, had later added an agreement for interest in proportion to the delay in the payments; and therefore interest on the first payment would begin to run at the end of the first month, and, likewise, after the second and third months, interest on the unpaid money would increase, but interest could not be collected on the unpaid principal until it could itself be collected. Some authorities say that the agreement which was added only relates to the payment of the principal and not to the interest as well, since the latter had been plainly provided for by the stipulation in the former clause, and that the agreement would only admit of an exception; hence, if the money was not paid at the times indicated, the interest would be due from the date of the stipulation, just as if this had been expressly stated. But where the time for collecting the principal has been deferred, the result will be that interest also will accrue from the day when the party was in default; and if, as the said authorities held, the agreement would only render an exception available (although a different opinion afterwards prevailed), still, according to law, the obligation to pay interest could not be enforced; for a party is not in default where the money cannot be collected from him, because he can plead an exception in bar to the claim. When, however, we stipulate for a certain quantity to be furnished where a condition is to be fulfilled, and it is collected in the meantime, as, for instance, where crops are concerned; the same provision may also be made with reference to interest, so that if the money is not paid by the specified day, what is due by way of interest may be paid from the day when the stipulation was entered into.

41Ad Dig. 12,1,41Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 172, Note 10.Africanus, Questions, Book VIII. A testator having appointed his slave Stichus an accountant in a certain province, his will was read at Rome, by which the said Stichus was set free and appointed an heir to a portion of the estate; and Stichus, who was ignorant of his change of condition, continued to collect the money of the deceased, and made loans, and sometimes entered into stipulations and took pledges; an opinion was asked what was the law in the case? It was held that any debtors who had paid him were released from liability, provided they, also, were not aware that the owner of the slave was dead; but with reference to the sums of money which had come into the hands of Stichus, his co-heirs had no right to bring an action for the partition of the estate, but that one should be granted them on the ground of business transacted; and where he himself had loaned money, property in the same was only transferred in proportion to the amount to which he himself was an heir. This is the case, because if I give you money in order that you may lend it to Stichus, and I then die, and you, being ignorant of the fact, should give him the money, you will not transfer the property in the same; for, notwithstanding that it may be held that the debtors after paying him are released from liability, it is not settled that he has a right to dispose of the ownership of the money by lending it. Wherefore, if no stipulation for repayment was entered into, suit could not be brought for the money which was lent, in proportion to the share of the coheir, nor could the pledges be retained. If, however, the stipulation was made for repayment, it is a matter of importance in what terms the stipulation was made; for instance, if he made it expressly in favor of Titius, his owner, who was dead at the time, there is no doubt that the stipulation would be void; but if he stipulated that the money should be repaid to him, it must be held that he acquired the benefit of the same from the estate; just as where freemen or the slaves of others serve us in good faith, whatever they acquire by means of our property belongs to us; so whatever is acquired through a portion of the estate is made for the benefit of the estate itself. Where, however, an estate has been entered upon by the co-heirs, this rule cannot be held to equally apply; at all events, if they knew that Stichus was appointed co-heir together with them, as, in this instance, those cannot be considered to be bona fide possessors who did not have the intention of holding possession. If, however, the case suggested has reference to co-heirs who are ignorant of the facts, for example, because they themselves were necessary heirs, the same opinion may still be given; and in this instance the result will be that if the said slave has co-heirs of the same condition, they will all be held to serve one another in good faith.

42Celsus, Digest, Book VI. If I stipulate for ten aurei from Titius, and I afterwards stipulate from Seius for the amount of the debt which I may fail to collect from Titius, then, if I bring suit against Titius for ten aurei, Seius will not be released from liability, otherwise the security provided by Seius will be worthless; but if Titius complies with the judgment, Seius will be no longer liable. If, however, I proceed against Seius, whatever the amount I can collect from Titius, when issue is joined between Seius and myself, is less than the obligation, so much the less can I subsequently collect from Titius. 1Labeo says that if you stipulate that a party shall see that ten aurei are paid, you cannot, for this reason, claim that ten should be paid to you, because the promisor can be released by finding a wealthier debtor; and, in fact, this means that the party cannot be compelled to join issue if he offers to provide a wealthier debtor.