1Gaius, On the Provincial Edict, Book IX. It was formerly held that a party did not have the power to bring suit in any other place than that where he had stipulated that the property which was the subject of the action should have been delivered; but, because this would be unjust, if the promisor never came to the place where, according to what he promised the property was to be delivered, (either because he failed to do so purposely, or for the reason that he was unavoidably detained elsewhere) and hence the stipulator could not obtain what belonged to him; it, therefore, seemed proper that an equitable action should be provided for this purpose.

2Ulpianus, On the Edict, Book XXVII. An arbitrarian action may be for the benefit of either the plaintiff or the defendant; and where it benefits the defendant, judgment is rendered for a smaller sum of money than what is claimed, and where it benefits the plaintiff, it is rendered for a larger sum. 1This action may arise out of a stipulation where I agree with you to pay me ten aurei at Ephesus. 2Where anyone brings suit under a stipulation that ten aurei should be paid to him at Ephesus, or a slave delivered to him at Capua, he should not, when he institutes proceedings, omit one of the two places, lest he may deprive the defendant of the advantage of locality. 3Ad Dig. 13,4,2,3ROHGE, Bd. 16 (1875), Nr. 109, S. 427, 429: Ergänzung unbestimmt gelassener Vereinbarungen. Arbitrium boni viri.Scævola says in the Fifteenth Book of Questions that what tacitly exists in a stipulation is, indeed, not always under the control of the defendant and he can decide according to his judgment what he ought to do, but that it is not in his power to decide whether or not he is under an obligation. Therefore, where a party promises to deliver Stichus or Pamphilus he can choose which one he will give, so long as both are living; but where one of them dies, his right of choice is terminated, otherwise, it would be in his power to determine whether or not he was under any obligation, if he was not willing to deliver the living slave whom alone he was required to deliver. Wherefore, according to the facts stated, if a party promised to deliver something at either Ephesus or Capua, an action could not be brought against him if he had the choice of the place where he should be sued, for he would always select the other place, and the result would be that he would have the power to decide whether he was under any obligation whatever. Hence Scævola thinks that an action can be brought against him in either place, and without any addition of locality; and therefore we give the choice of the place of the action to the plaintiff. Scævola states in general terms that the plaintiff is entitled to choose where he will sue, and the defendant where he will pay, of course before suit is brought. Therefore he says there is an alternative of claim as well as an alternative of place, which necessarily gives the plaintiff the choice as to the claim on account of his right to select the place; otherwise, if you wish to reserve the option for the defendant you will deprive the plaintiff of the power to bring an action. 4Where anyone stipulates as follows, “At Ephesus and Capua,” Scævola says he can bring suit for part of the claim at Ephesus and part at Capua. 5Where anyone stipulates for a house to be built, and does not mention the place, the stipulation is void. 6He who stipulates for ten aurei to be paid at Ephesus, and brings suit before the day on which he can arrive at Ephesus, proceeds improperly before the time; for it is the opinion of Julianus that a certain date is tacitly understood in a stipulation of this kind; hence I think that the opinion of Julianus is correct, and that where a party stipulates at Rome that delivery is to be made at Carthage on the same day, the stipulation is void. 7Moreover, Julianus discusses the following question, namely: where a party stipulated that payment should be made at Ephesus to either himself or to Titius, and if Titius should be paid elsewhere, whether he could, nevertheless, claim that payment should be made to himself; and Julianus says that there is no release from liability for the debt, and that therefore an action can be brought for the amount of the party’s interest. Marcellus, however, discusses the question separately, and states in a note on Julianus that it may be held that there is a discharge of the debt even if payment is made to me elsewhere, although I cannot be compelled to accept it if I am unwilling; and that it is evident, if there is no discharge, that it must be held that the right remains to sue for the entire amount; just as if some one built a house in another place than that where he promised to build it, he will not be released from any portion of his obligation. It seems to me, however, that the payment of a sum of money is different from the construction of a house, and therefore that suit can only be brought for the amount of the party’s interest. 8Ad Dig. 13,4,2,8ROHGE, Bd. 4 (1872), S. 192: Verpflichtung zum Ersatz von Conventionalstrafen, welche der durch Verzug des andern Contrahenten Beschädigte einem Dritten hat bezahlen müssen.ROHGE, Bd. 5 (1872), S. 171: Verpflichtung zum Ersatz von Conventionalstrafen, welche der durch Verzug des andern Contrahenten Beschädigte einem Dritten hat bezahlen müssen.We must now treat of the duty of the judge who presides in this action; that is whether he should adhere strictly to the amount involved in the contract, or whether he should increase or diminish it, so that if it was to the interest of the defendant that payment should be made at Ephesus rather than at the place where suit was brought, this may be taken into account. Julianus, following the opinion of Labeo, also considered the position of the plaintiff, who sometimes might be interested in recovering payment at Ephesus; and therefore the benefit to the plaintiff must also be taken into consideration. For suppose he lent money on a maritime contract which was to be paid at Ephesus, where he himself owed money under a penalty or on a pledge, and the pledge was sold or the penalty incurred on account of your default? Or suppose he was indebted to the Treasury, and the property of the stipulator was sold for an extremely low price? The amount of the interest which he had in the matter must be considered in the arbitrarian action, and this indeed can be done so as to include a higher rate of interest than is legal. What would be the case if he was accustomed to purchase merchandise; ought not an account to be taken of the profit and not merely of the loss which he suffered? I think that an account should be taken of the profit which he failed to obtain.

3Gaius, On the Provincial Edict, Book IX. This action is submitted to the decision of the judge for the reason that the prices of articles vary in different cities and provinces, and especially those of wine, oil, and grain; and so far as money is concerned, although it might seem to have one and the same power everywhere, still, in certain localities it is more easily obtained and at a lower rate of interest than in others, where it is harder to get and the rate of interest is heavy.

4Ulpianus, On the Edict, Book XXVII. Where suit is brought at Ephesus, only the actual amount can be demanded, and nothing more, unless the plaintiff had stipulated for it, or else the advantage of time is involved. 1Ad Dig. 13,4,4,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 46, Note 4.Sometimes the judge who has jurisdiction of this action, as it is arbitrarian, should discharge the defendant, after having required him to provide security for payment of the money where it was promised. For, suppose it is stated that the money was tendered to the plaintiff, or deposited, or could readily have been paid there; should not the judge sometimes discharge the defendant? In short, the judge appointed to hear the action ought always to have equity before his eyes.

5Paulus, On the Edict, Book XXVIII. Where an heir is directed by the testator to pay something at a certain place an arbitrarian action will lie.

6Pomponius, On Sabinus, Book XXII. Or where money was lent with the understanding that it should be repaid at a certain place.

7Paulus, On the Edict, Book XXVIII. In bona fide cases, even if it was agreed upon in the contract that something should be delivered at a certain place, an action can be brought on purchase, on sale, or on deposit, but an arbitrarian action will not lie. 1Where, however, a party stipulated that he would deliver the property at a certain place, this action must be employed.

8Africanus, Questions, Book III. Having stipulated that a hundred aurei should be paid to you at Capua, you received a surety; proceedings to recover the money should be instituted against the surety just as they should be against the promisor himself; that is to say, if an action is brought at any other place than Capua it ought to be an arbitrarian one, and the damages must be assessed at an amount equal to the interest that either the plaintiff or the defendant would have in the sum of money being paid at Capua rather than elsewhere. Nor should the obligation of the surety be increased because it was the fault of the principal debtor that the entire sum of a hundred aurei was not paid at Capua; for this case cannot properly be compared with an obligation for the payment of interest, for there there are two stipulations, but in this instance there is only one for money borrowed, and, with reference to the execution of the same, the amount of damages must be left to the discretion of the Court. I think that a very clear proof of the difference between these two cases is established by the fact that, if a portion of the money is paid after the party is in default and suit is brought for the remainder, the duty of the judge is to estimate the interest which the plaintiff has in payment to be made at Capua of only the amount involved in the action.

9Ulpianus, On Sabinus, Book XLVII. Where a person promises to pay at a certain place, he can do so at no other place than the one for which he promised, if the stipulator is unwilling.

10Ad Dig. 13,4,10ROHGE, Bd. 24 (1879), Nr. 16, S. 56: Anspruch auf Konventionalstrafe wegen Verspätung der Hauptleistung ungeachtet vorbehaltloser Annahme der Letzteren.Paulus, Questions, Book IV. If, after default of payment at Capua, the creditor should wish to bring an arbitrarian action, and should first take a surety on account of said action, let us consider whether any amount that may be added by the decision of the court to the original debt will not be due and be included in the obligation, so that now if the principal should be paid, or suit is brought at Capua, the jurisdiction of the court is terminated; unless someone should say, for example, that the judge ought to render a decision for one hundred and twenty aurei, and a hundred of the entire amount is paid, this should be considered to be paid on the total, that is out of the principal and the penalty; so that the plaintiff would have a right of action for the amount still remaining due on the original debt, as well as the penalty which has accrued for default of payment of that amount. I do not think however that this can be accepted as sound; and the more so because the creditor is held to have remitted the penalty when he received the money.