The Same, Digest, Book XX. I think that I can purchase my own property under a condition, because a case might arise where it would cease to be mine.

The Same, Digest, Book XX. Where ten aurei, payable every year, are bequeathed to Titius, the judge having jurisdiction under the Falcidian Law to establish the proportion payable by the heir and other legatees should estimate the value of the legacy at whatever it could have brought during the life of Titius, it being uncertain how long Titius might live. After the death of Titius, however, the judge should not consider anything else than the amount that the heir owned by reason of the legacy.

Marcellus, Digest, Book XX. I think that property which belongs to me can be stipulated for under a condition, as I can stipulate for a right of way to a tract of land, although the land may not belong to me at the time. If, however, this should not be the case, and I stipulate for land belonging to another, under a condition, and the land afterwards becomes mine by a lucrative title, the stipulation is immediately annulled. If the owner of the land stipulates for a right of way under a condition, the stipulation will be annulled as soon as the land is alienated; and this is certainly the case in the opinion of those authorities who hold that obligations which have been legally contracted are extinguished, when the conditions under which they exist become such that they could not have been established under them. 1The question arises when suit can be brought under the following stipulation: “Do you promise to prop up such-and-such a house?” It is not necessary to wait until the house falls down, for it is to the interest of the stipulator that it should be propped up, rather than that it should not be; still proceedings cannot properly be instituted, if sufficient time has not elapsed for the person to prop it up who intends to do so.

Marcellus, Digest, Book XX. If I stipulate “For Stichus or Pamphilus, whichever the promisor may select,” I cannot take a surety for Stichus or Pamphilus, whichever the surety may choose to be responsible for; because it would be in his power to give a different one from that which the principal debtor might select. 1I received a surety from Titius, who owed me ten aurei conditionally under the terms of a will, and I became his heir, and afterwards the condition upon which the legacy depended was fulfilled, I ask whether the surety is liable to me. The answer was, that if the legacy was bequeathed to you under a condition, and, after having received a surety from the testator you became his heir, you cannot consider the surety as liable, because there is no debtor for whom the surety can be liable, and there is nothing that is due to you.

Marcellus, Digest, Book XX. Ad Dig. 46,3,72 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 345, Note 9.Where anyone who owes ten aurei tenders them to his creditor, and the latter, without any good reason, refuses to accept them, and afterwards the debtor loses them, without any fault of his own, he can protect himself by an exception on the ground of fraud, even though, after having been notified, he does not make payment; for, indeed, it is not just for him to be liable for the money which was lost, because he would not be liable if the creditor had been willing to take it. Wherefore, what the creditor was in default in receiving should be considered as having been paid. And certainly, if a slave formed part of a dowry, and the husband tendered him, and the slave died, or if he rendered money, and should lose it, after the woman has refused to accept the slave or the money, he ceases to be liable by operation of law. 1If you owe me Stichus, and are in default in delivering him, having promised him under a condition, and while the condition is pending Stichus dies, as the first obligation cannot be renewed, let us see whether suit can be brought to recover the slave, if there was no stipulation. It may, however, be said in reply that when the debtor promised the stipulating creditor under a condition, he does not appear to have been in default in the delivery of the slave. For it is true that he who was notified and refused to deliver him will be released from liability, if he tenders him subsequently. 2But what if the creditor should stipulate with another, without the knowledge of the debtor? In this instance, also, the debtor should be considered as having been released from liability; just as if anyone should tender a slave in the name of the debtor, and the stipulator should refuse to accept him. 3The same opinion was given in the case where a man, after a slave had been stolen from him, stipulated under a condition for all that the thief was able to pay, or do; for the thief will be released from liability to an action for recovery, if the owner of the slave should refuse to accept him when he is tendered. If, however, the stipulation was entered into while the slave was in a province, and suppose that, before the thief or the promisor was able to obtain possession of him, the slave should die, there would be no ground for the application of the rule which we mentioned above; for, on account of the absence of the slave, he could not be considered to have been tendered. 4I stipulated for Stichus and Pamphilus, when Pamphilus belonged to me. If he should cease to be mine, the promisor will not be released by giving Pamphilus; for no contract is considered to have been made with reference to the slave, Pamphilus, either by way of obligation or payment. But where anyone stipulates for the delivery of a slave, the promisor, by giving one of the slaves who belonged to him at the time the stipulation was made, will be released. And, indeed, the stipulator, by the terms of the agreement, seems to have contracted for a slave to be delivered who did not belong to the promisor at the time. Let us suppose the stipulation was as follows: “Do you promise to give one of the slaves that Sempronius left?” If Sempronius left three, one of them would belong to the stipulator; and let us see if the other two slaves that belonged to someone else should die, whether the obligation would continue to exist. The better opinion is, that the stipulation will be extinguished, unless the remaining slave belonging to the stipulator should cease to be his before the death of the other two. 5Ad Dig. 46,3,72,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 394, Note 20.Where someone who owes a slave gives Stichus, who is entitled to his freedom under the terms of a trust, he is not considered to have been released. For his delivery of the slave amounts to less than if he had given him while still liable to be surrendered by way of reparation for damage committed. Hence, will the same rule apply if he delivers a grave digger, or some other degraded slave? In this instance, we cannot deny that he has given a slave, but it differs from the former ones, as he has a slave who cannot be taken away from him. 6The promisor of a slave must deliver such a one as the stipulator can manumit, if he desires to do so.