De novationibus et delegationibus
(Concerning Novations and Delegations.)
1Ulpianus, On Sabinus, Book XLVI. Novation is the transfer and transmission of a former debt into another civil or natural obligation; that is to say, when from the preceding liability a new one is created in such a way that the former is destroyed; for novation derives its name from the term “new,” and from a fresh obligation. 1It is of no importance what the character of the first obligation may be, whether it is natural, civil, or prætorian, or whether it is oral, real, or based on consent. Therefore, whatever it is, it can be verbally renewed, provided the following obligation is binding either civilly or naturally, for instance, where a ward promises without the authority of his guardian.
2The Same, On Sabinus, Book XLVIII. All matters are susceptible of novation, for every contract, whether verbal or otherwise, can be substituted in this manner, and pass from any kind of an obligation whatsoever into an oral one, provided we know that this is done in such a way that the obligation is changed in this way. If, however, this is not the case, there will be two obligations.
3Pomponius, On Sabinus, Book I. A person who has been deprived of the management of his property cannot renew his obligation, unless he renders his position better.
4Ulpianus, On Sabinus, Book V. If I delegate to you someone who owes me an usufruct, my obligation is not altered by novation, although he who has been delegated can protect himself against me by an exception on the ground of bad faith, or by one in factum; not only while the usufruct is enjoyed by the person to whom I delegated him, but even after his death, because, after I die, he to whom the usufruct was delegated will continue to hold it to the disadvantage of the debtor. This also applies to all obligations attaching to the person.
5The Same, On Sabinus, Book XXXIV. An obligation can be subjected to novation at a prescribed time, and even before the time arrives. Generally speaking, it is settled that a stipulation made for a specified period can become a novation; but that suit cannot be brought under the stipulation before the time arrives.
6The Same, On Sabinus, Book XLVI. If I should stipulate as follows: “Will you be responsible for any amount which I may not be able to collect from Titius, my debtor?” a novation is not created, because the transaction is not for that purpose. 1When anyone has lent money without a stipulation and immediately makes one, there is but one contract. The same thing must be said where the stipulation was made first, and the money counted afterwards.
7Pomponius, On Sabinus, Book XXIV. For, when we stipulate for a loan, I do not think that the obligation arises from the counting of the money, and that afterwards the novation is created by the stipulation; because the intention is that there should be but one stipulation, and the counting of the money is understood to be done merely for the purpose of completing the contract.
8Ulpianus, On Sabinus, Book XLVI. If I stipulate for the delivery of Stichus to me, and when the promisor fails to deliver him, I again stipulate for him, the promisor is no longer responsible for the risk, as liability for the default has been released. 1Ad Dig. 46,2,8,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 355, Note 3.Where legacies or trusts are included in the stipulation, and the intention was that it should be subjected to novation, this will take place; and if they were bequeathed absolutely, or to take effect at a certain time, novation occurs immediately. When, however, they were conditional, it will not take place at once, but when the condition is complied with; for, otherwise, where anyone stipulates for a prescribed time, he immediately creates a novation, if such was the intention, as it is certain that the date will arrive at some time or other. But where anyone stipulates under a condition, novation does not become operative immediately unless the condition is fulfilled. 2Where anyone stipulates with Seius, as follows, “Do you promise to pay whatever I stipulate for with Titius?” and I afterwards stipulate with Titius, does a novation take place so that Seius alone will liable? Celsus says that a novation does take place, provided this was the intention, that is to say that Seius should owe what Titius promised to pay. For he asserts that the condition of the first stipulation is complied with and novation occurs at the same time. This is our practice. 3Celsus also says that by the stipulation of paying the judgment, the action to enforce judgment is not subjected to novation; and this is reasonable, because in this stipulation the only thing involved is that a surety shall be provided, and that there shall be no departure from the obligation of the judgment. 4If I stipulate with a third party for the ten aurei which Titius owes me, or the ten which Seius owes me, Marcellus thinks that neither one of them is released, but that the third party can select him for whom he wishes to pay the ten aurei. 5When a husband stipulates with his wife for a dowry which was promised to her by a stranger, the dowry will not be doubled, but it has been decided that a novation will take place, if this was the intention. For what difference does it make whether she or someone else makes the promise? For if another person promises to pay what I owe, he can free me from liability, if this is done for the purpose of novation. If, however, he did not intervene in order to make a novation, both parties will, in fact, be liable; but if one of them pays, the other will be released. Still, if anyone stipulates for what is due to me, he does not deprive me of my right of action, unless he stipulates with my consent; but he who promises what I owe releases me from liability, even if I am unwilling that this shall be done.
9The Same, On Sabinus, Book XLVII. Ad Dig. 46,2,9 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 355, Noten 4, 5.If a ward, having stipulated without the authority of his guardian, arrives at puberty, and ratifies the stipulation for the purpose of making a novation, the right of action on guardianship will be extinguished. If he does not ratify it, even though he brings suit on guardianship, he will also be entitled to one under the stipulation; but the judge, who has jurisdiction of the action on guardianship, ought not to render a decision against the guardian, without releasing him from the stipulation. 1Anyone who stipulates under a condition which is certain to be fulfilled is considered to have stipulated absolutely. 2Where anyone stipulates for a driveway, and afterwards for a right of passage, his act is void. Again, where anyone stipulates for an usufruct, and also for an use, his act will be void. Where, however, he stipulates for a right of passage, and afterwards for a driveway, he stipulates for something in addition, for a right of passage is one thing and the right to drive is another.
10Paulus, On Sabinus, Book XI. He to whom payment can legally be made can also make a novation, except in the case where I stipulate for myself, or for Titius; for Titius cannot make a novation, although payment can be legally made to him.
11Ulpianus, On the Edict, Book XXVII. To delegate is to give another debtor to a creditor, or to one whom he may direct, instead of one’s self. 1Delegation takes place either by stipulation, or by joinder of issue in court.
12Paulus, On the Edict, Book XXXI. If anyone should delegate a debtor whom he knew could protect himself by an exception on the ground of fraud, he will resemble a person who makes a gift under such circumstances, as he is considered to rely upon an exception to annul his act. If, however, he promises his creditor through ignorance, he cannot have recourse to an exception against him because the latter receives what is his own; but he who delegated him will be liable in a personal action for recovery, or one for an uncertain amount, if the money was not paid, or for a certain amount if it was paid; and therefore, when he has paid it, he can bring an action on mandate.
13Ulpianus, On the Edict, Book XXXVIII. If I delegate to my creditor, as my debtor, someone who does not owe me, there will be no ground for an exception, but a personal action will lie against the person who delegated him.
14The Same, Disputations, Book VII. Whenever anything which is absolutely due is promised conditionally, for the purpose of creating a novation, the novation does not take place immediately, but only after the condition has been complied with. Therefore, if Stichus should happen to be the subject of the obligation, and should die while the condition is pending, the novation will occur, because the property, which was the object of the stipulation, was not in existence at the time when the condition was fulfilled. Hence Marcellus thinks that, even if Stichus was included in the conditional obligation, after he who promised him was in default, the default will be purged, and Stichus will not be included in the ensuing obligation. 1Ad Dig. 46,2,14,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 355, Note 3.But where anyone, for the purpose of making a novation, stipulates absolutely for something which is due under a condition, he does not immediately create the novation, although an absolute stipulation seems to produce some effect, but the novation takes place when the condition is fulfilled. For a condition, once having been complied with, renders the first stipulation operative, and transfers it to the second. Therefore, if the promisor should be deported while the condition is pending, Marcellus says that novation will not take place, even if the condition is fulfilled, because there is no one who will be liable when this occurs.
16Ad Dig. 46,2,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 355, Noten 4, 5.Florentinus, Institutes, Book VIII. A slave cannot make a novation without the consent of his master, even where the obligation involves his peculium, but he rather creates a new obligation than renews the former one.
17Ulpianus, On the Edict, Book VIII. Anyone can delegate his debtor, either by writing or by a gesture, when he is unable to speak.
18Paulus, On the Edict, Book LVII. When novation is properly made, all liens and pledges are released, and interest ceases to be due.
19Ad Dig. 46,2,19Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 18; Bd. II, § 487, Note 3.The Same, On the Edict, Book LXIX. The exception on the ground of fraud, which can be opposed to anyone who delegates his debtor, does not affect the creditor to whom the debtor is delegated. The same rule applies to all similar exceptions, and, indeed, even to that which is granted a son under paternal control by the Decree of the Senate. For he cannot make use of the exception against the creditor to whom he has been delegated by one who lent money contrary to the Decree of the Senate, because, making this promise, nothing is done in violation of the Decree of the Senate, and therefore he cannot recover what he has paid, any more than he can recover what he has paid in court. The case is different where a woman has promised to pay contrary to the Decree of the Senate, for security is included in the second promise. The same rule applies to a minor who, having been deceived, is delegated; for, if he is still a minor, he is deceived a second time. It is otherwise if he has passed the age of twenty-five years, although he still can obtain restitution against his first creditor. Therefore, exceptions against his second creditor are refused him; because in private contracts and agreements the claimant cannot readily ascertain what transactions have taken place between the person delegated and his original debtor; or, even if he does know, he should simulate in order not to appear too inquisitive; and hence it is but reasonable that the exception against the original debtor should be refused him.
20The Same, On the Edict, Book LXXII. We can make a novation ourselves, if we are our own masters, or by others who stipulate with our consent. 1A ward cannot make a novation without the authority of his guardian; a guardian can do so, if it is to the interest of his ward, and as agent likewise, if he has charge of all the property of his principal.
21Pomponius, On Plautius, Book I. If I order my debtor to pay you, you cannot immediately, while you are stipulating, make a novation, although the debtor, by paying you, will be released.
22Paulus, On Plautius, Book XIV. If anyone, during my absence, stipulates with my debtor for the purpose of making a novation, and I afterwards ratify his act, I renew the obligation.
23Pomponius, On Plautius, Book III. A son under paternal control cannot make a novation of the action of his father, without the knowledge of the latter.
24The Same, On Plautius, Book V. A novation cannot arise from a stipulation which does not become operative. Nor can it be stated, in opposition to this, that if I stipulate with Titius, with the intention of renewing the debt which Sempronius owes me, under a condition, and while the condition is pending Titius should die, although the condition may have been fulfilled before the estate was entered upon, novation will take place; for, in this instance, the stipulation is not extinguished by the death of the promisor, but passes to the heir who, in the meantime, represents the estate.
25Celsus, Digest, Book I. No one has a right to renew an old debt by novation, solely because payment can sometimes legally be made to him. For payment can sometimes properly be made to those who are under our control, when none of them can, by himself, in accordance with law, substitute a new obligation for the old one.
26The Same, Digest, Book III. Where a man to whom Titius owes ten aurei, and Seius fifteen, stipulates with Attius that he shall pay him what one or the other of them owes, both the obligations are not subjected to novation; but it is in the power of Attius to pay for whichever one he wishes, and release him. Suppose, however, that it had been agreed that he should pay one or the other of the claims; for otherwise, he would be considered to have stipulated for both, and both would have been subjected to novation, if this had been intended.
27Papinianus, Opinions, Book III. When a purchaser, having been delegated by the vendor, promises money as follows, “Whatever it is necessary to pay, or to do, on account of the sale,” novation takes place; and he does not owe to anyone interest for the following time.
28The Same, Definitions, Book II. Having stipulated for the Cornelian Estate, I afterwards stipulated for the value of the land. If the second stipulation was not made with the intention of creating a novation, the novation will not take place; but the second stipulation, by the terms of which not the land, but the money is due, will stand. Therefore, if the promisor should convey the land, the second stipulation will not be extinguished by operation of law, not even when the plaintiff institutes proceedings under the terms of the first one. Finally, if the land, being improved, or having subsequently deteriorated without the fault of the debtor, is claimed, the present estimate may properly be considered; and if, on the other hand, its value is demanded, the appraisement at the time of the second stipulation should be accepted.
29Ad Dig. 46,2,29ROHGE, Bd. 11 (1874), Nr. 27, S. 69: Natur der Judicatsklage.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 354, Note 15.Paulus, Questions, Book XXIV. There are many examples which show the distinction existing between” a voluntary novation, and one derived from a judgment. The privileges of dowry and guardianship are lost, if the dowry is included in the stipulation after a divorce has taken place, or the action of guardianship is renewed by novation after puberty; if this was the express intention which was not referred to by anyone when issue was joined. For, in bringing suit, we do not render our position worse but better, as is usually said with reference to actions which can be terminated by lapse of time, or by death.
30Ad Dig. 46,2,30Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 233b, Note 2.The Same, Opinions, Book V. Paulus gave it as his opinion that if a creditor, with the intention of making a novation, should stipulate with Sempronius in such a way as to entirely abandon the first obligation, the same property could not be encumbered by the second debtor without the consent of the first.
31Venuleius, Stipulations, Book III. If I stipulate for something to be given me, and I afterwards stipulate for the same thing with the same person under a condition, with the intention of making a novation, the property must remain in existence in order for there to be ground for the novation, unless the promisor was required to give it. Therefore, if you are obliged to deliver me a slave, and you are in default in doing so, you will be liable even if the slave should die, and if, before he dies, you are already in default, and I stipulate with you for the same slave under a condition, and the slave afterwards dies, and then the condition is fulfilled, as you are already liable to me under the stipulation, novation will alscr take place. 1Ad Dig. 46,2,31,1ROHGE, Bd. 4 (1872), S. 217: Liberation eines Schuldners ohne dessen Wissen durch Zahlung bez. Angabe an Zahlungsstatt, Novation eines Dritten.ROHGE, Bd. 16 (1875), Nr. 82, S. 328: Ersatzanspruch aus der Tilgung bezw. Uebernahme der Schuld eines Andern.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 295, Note 5; Bd. II, § 354, Note 15.Where there are two joint-stipulators, the question arises whether one of them has the right to make a novation, and what right each acquires for himself. Generally speaking, it is established that payment may properly be made to one, and that if one institutes proceedings he brings the entire matter into court, just as where one is released, the obligation of both is extinguished. From this it may be gathered that each of them acquires for himself, just as if he alone had stipulated; except that each of them, by the act of him with whom the stipulation was jointly made, can lose his debtor. According to this, if one of the joint-stipulators enters into another agreement with a third party, he can, by novation, release him from liability to the other joint-stipulator, if such was his express intention; and there is all the more reason for this, as we think that the stipulation resembles payment. Otherwise, what shall we say if one of them delegates the common debtor to his creditor, and the latter stipulates with him; or a woman orders a tract of land to be promised to her husband by way of dowry; or, if she was about to marry him, she should promise him the land as dowry? The debtor would be released, so far as both parties are concerned.
32Paulus, On Neratius, Book I. You are obliged to deliver me a slave, and Seius must pay me ten aurei. I stipulate for the purpose of making a novation with one of you, as follows, “What you, or Seius must give.” Both obligations are subjected to novation. Paulus: This is reasonable, because both of them are included in the last stipulation.
33Tryphoninus, Disputations, Book VII. If Titius, desiring to make a donation to me, and having been delegated by me, promises my creditor, who is the stipulator, he will not be entitled to use the exception against him in such a way as to have judgment rendered against him to the extent of his means; but he can properly make such a defence against me, because I demanded what he had already given him. The creditor, however, can collect the debt.
34Gaius, On Oral Obligations, Book III. It cannot be doubted that a son under paternal control or a slave who is permitted to manage his own peculium has also the right to make the debts of the peculium the subject of novation, if the parties stipulate; and this is by all means the case if his condition will be improved by doing so. For if he directs a third party to stipulate, it makes a difference whether this is done with the intention of making a donation, or in order that he may transact the business of the son or the slave, and on this ground the action on mandate with reference to the peculium is acquired by them. 1There is no doubt whatever that the relative of an insane person, or the curator of a spendthrift, has the right of novation, if this is to the advantage of the said insane person or spendthrift. 2In a word, we should remember that there is nothing to prevent the novation of several obligations by one agreement, as for instance, if we stipulate as follows, “Do you promise to pay what Titius and Seius are obliged to pay me?” for although they are liable for different reasons, still both are released by the right of novation, as the liability of both is united in the person of him with whom we now stipulate.