Paulus, On the Edict, Book III. If the entire body of slaves belonging to anyone should deface a register, the Edict does not treat this offence as it would a case of theft, where the master who wishes to defend the action pays as much in the name of one slave as a freeman would be compelled to pay, for then no action will lie against the others; the reason for which is perhaps that, in this instance, the offended dignity of the Prætor must be vindicated, and several acts are understood to have been committed; in the same manner as when several slaves have perpetrated a wrong, or have caused damage, because several acts have taken place, and not merely one, as in the case of theft. Octavenus says that in this instance relief ought to be granted to the master, but this can only be maintained where the slave maliciously brings it about that the register shall be destroyed by another, because then there is only one conspiracy, and not several acts. Pomponius states the same thing in the Tenth Book.

Paulus, On the Edict, Book III. The malice of the presiding judge is punished by this Edict; for, if through the ignorance of an assessor the law was interpreted in a different manner than it should have been, this should not affect the magistrate, but the assessor himself.

Paulus, On the Edict, Book III. Where suit is brought for a legacy the Prætor does not order the terms of the will to be set forth, probably because the heir usually has a copy of the will.

Paulus, On the Edict, Book III. Time must be granted him to bring these accounts.

Paulus, On the Edict, Book III. For instance, where he shows that the accounts given in the beginning are in some distant place, or that they are not complete, or that he has lost them through unavoidable accident, and not through negligence, for if he lost them by an accident of this kind for which he should be excused, he shall be ordered to produce them a second time. 1This term: “A second time,” has two significations, one in which reference is made to the second time which the Greeks call deuteron, and the other which includes also subsequent times, which the Greeks call palin; by which is understood “as often as is necessary”; for it may happen that a party has lost an account which was twice given him, so that the term “a second time” is understood to mean “frequently”.

Paulus, On the Edict, Book III. There are some persons who are obliged to produce our accounts, although they are not required to do so by the Prætor under this Edict; as, for instance, where an agent transacts our business or keeps our accounts, he is not required to produce his accounts by the Prætor, through fear of an action in factum, for the reason that we can obtain this by an action on mandate. Also, where a partner has transacted the business of the partnership fraudulently, the Prætor cannot proceed against him under this clause, for there is an action in behalf of his partner; nor can the Prætor force a guardian to furnish an account to his ward, for it is customary to compel him to do this by an action of guardianship. 1It makes no difference whether the successors, the father, or the master of the banker are in the same business; for since they take his place and succeed him in law, they are bound to discharge his obligations. A party to whom a banker has left his accounts does not appear to be included, (since by these words his legal successor is meant) any more than, if he, while living, had presented him with them. Nor will the heir himself be liable, if he has not had possession of them and has not acted fraudulently. If, however, before he delivers them to the legatee, he should be notified not to do so, he will be liable just as if he acted through malice; and he will also be liable so long as he has not surrendered them. If he does not act maliciously, the legatee will be compelled to produce the accounts, where sufficient cause is shown. 2Nor is it unjust that money-brokers, as Pomponius says, should be compelled to produce their accounts, because brokers of this kind, as well as bankers, keep accounts, and receive and pay out money at different times; which is principally proved by their entries and account books, and reliance is very frequently placed upon their good faith. 3Moreover, the Prætor orders accounts to be produced for those who demand it, and who swear that they are not bringing suit for the purpose of annoyance. 4Accounts are considered as concerning us, not only when we ourselves have been parties to a contract, or have succeeded someone who has made a contract, but also where a contract has been made by a person under our control.

Paulus, On the Edict, Book III. Labeo says that an agreement can be entered into by delivery of property, by a letter, or by a messenger. It can also be made between absent parties, and it is understood that an agreement can be entered into by tacit consent. 1Hence, if I restore his obligation to my debtor, it is held to have been agreed upon between us that I will not make any claim against him; and it is established that, if I do, he can plead in bar an exception based on the agreement.

Paulus, On the Edict, Book III. Again, for the reason that tacit agreements are valid, it is settled that personal effects brought into dwelling-houses, which have been rented, are to be regarded as pledged to the lessor; even though nothing was specially stated to that effect. 1In accordance with this principle, a person who is dumb can enter into a contract. 2A stipulation made on account of a dowry is another proof of this, for no one has a right, before marriage, to bring suit for the dowry, any more than if this had been expressly stated; and if the marriage does not take place, the stipulation has no effect, which is also the opinion of Julianus. 3Having been consulted in a case where it was agreed that the principal could not be demanded so long as the interest was paid, and the stipulation was unconditionally drawn up, it was the opinion of Julianus that the condition was implied by the stipulation, just as if it had been expressed therein.

Paulus, On the Edict, Book III. A convention based upon legislative enactment is one which is confirmed by some law; and therefore sometimes an action arises from an agreement, or is abrogated by it; which takes place as often as it is supported by an enactment, or by a Decree of the Senate.

Ad Dig. 2,14,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 414, Note 8.Paulus, On the Edict, Book III. For the reason that he can be paid.

Paulus, On the Edict, Book III. But if the agent was only appointed for the purpose of bringing an action, an agreement made by him does not prejudice his principal, for the reason that he cannot receive payment. 1Where, however, the agent was appointed for the transaction of affairs in which he himself is interested, he is considered to occupy the place of a principal, and thus any agreement entered into with him must be observed.

Paulus, On the Edict, Book III. An agreement made by a guardian on behalf of his ward is valid, as is stated by Julianus.

Paulus, On the Edict, Book III. If I give you ten aurei and agree with you that you shall owe me twenty, no obligation arises for more than ten, for none can be contracted for a greater amount than has been given. 1There are certain rights of action which are annulled under a contract by operation of law, as, for instance, one for injuries, or one for theft. 2A right of action based upon an agreement arises in the case of a pledge, under Prætorian Law; it is, however, annulled by an exception whenever I agree not to sue. 3When anyone makes an agreement that no suit shall be brought against himself, but shall be brought against his heir; an exception filed by the heir will be of no benefit to him. 4If I should agree that no suit shall be brought against me, or against Titius, this will be of no advantage to Titius, even if he should become the heir, because this cannot be confirmed subsequently. Julianus established this rule in the case of a father who made an agreement that suit should not be brought against him, or his daughter, when the daughter afterwards became the heir of her father. 5Where an agreement has been entered into with the vendor with reference to the property, it can be pleaded by the purchaser, according to the opinion of several authorities, and Pomponius states that we make use of this rule; but, according to Sabinus, when the agreement is personal, it can also be pleaded against the purchaser. He thinks that this is also the law where a succession arises through donation. 6When the unlawful possession of the estate of another enters into an agreement, many are of the opinion that the agreement will neither benefit nor prejudice the heir, if he should recover the estate. 7If a son or a slave enters into an agreement that no action shall be brought against the father or the master.

Paulus, On the Edict, Book III. They are entitled to an exception. The same rule applies to those who are held in slavery in good faith. 1Again, if the son of a family makes an agreement that suit shall not be brought against him, it will be to his advantage and to that of his father also, if the latter is sued for the peculium of the son.

Paulus, On the Edict, Book III. It can also be pleaded by the heir of the father during the lifetime of his son, but after the death of the son this cannot be done by the father or his heir, because the agreement is a personal one. 1Where a servant enters into an agreement that he shall not be sued, the agreement is worthless. Let us see whether an exception on the ground of fraud can be pleaded. When the agreement has reference to property, an exception based upon the agreement itself can be pleaded by the master and his heir, but where the agreement is personal, then the exception on the ground of fraud is only available. 2By making an agreement we cannot benefit those who are under our control; but it will be an advantage to us if we make an agreement in their behalf, as Proculus states. And this doctrine is correct if this was the understanding that the time that the contract was entered into; but if I agree that you shall not bring suit against Titius, and you begin an action against me in his name, an exception on the ground of contract is not allowed; for what is no benefit to Titius himself will be of none to his defender. Julianus also stated that where a father agreed that no suit should be brought either against him or his son, the better opinion is that the exception on the ground of contract cannot be pleaded by the son of the family, but merely one on the ground of fraud. 3The son of a family can enter into an agreement not to bring suit for a dowry when he becomes his own master. 4The son of a family can also legally enter into an agreement concerning a legacy bequeathed to him under some condition. 5Where there are several persons who have the right to collect an entire sum of money, or who are co-debtors for the same sum, the question arises to what an extent an exception on the ground of contract can be pleaded by one for, and against the others? An agreement made with reference to the property will benefit those who have been released from this obligation, where he who entered into the agreement had an interest in this; and therefore an agreement of the debtor will be an advantage to the sureties.

Paulus, On the Edict, Book III. An agreement made by the surety would be of no benefit to the principal, because the surety has no interest in the money not being collected from the debtor; nor would it be of any benefit to the co-sureties, nor will an agreement made with another, no matter what his interest may be; for he can only do this when an exception is granted him and the benefit chiefly enures to the party with whom the agreement was made, as in the case of a principal promisor along with those who are bound on his account.

The Same, On the Edict, Book III. The same rule applies where two principal debtors, or two bankers who are partners, bind themselves. 1Labeo says that a personal agreement does riot concern a third party, nor in fact an heir. 2But although the agreement of a surety is of no advantage to the principal debtor, Julianus says that the latter can, nevertheless, generally avail himself of an exception on the ground of fraud.

Paulus, On the Edict, Book III. Ad Dig. 2,14,27 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 295, Noten 3, 4.Where one of two bankers, who are partners, make an agreement with a debtor, can an exception be pleaded in bar against the other? Neratius, Atilicinus, and Proculus, are of the opinion that it can not, if the agreement relating to the property was made by one of them; for it has only been settled that the other can bring suit for the entire debt. Labeo holds the same opinion, because although one of them can receive payment, he cannot change the obligation; and thus payment of what they have loaned can properly be made to those who are under our control, but the obligation cannot be changed; and this is correct. The same rule applies to two creditors under a stipulation. 1Where an informal agreement has been made with a principal debtor granting him time, neither debtor nor surety will have the benefit of any further time. If the debtor, without releasing himself, enters into an agreement that his surety shall not be sued; some authorities think that this is of no benefit to the surety, even though the principal was interested therein; for the reason that the same exception should be available to him as to the principal. I have held that the surety is entitled to the benefit of an exception, for this would not be the case where a right was acquired through a free person, but rather one where we have provided for the party himself who entered into the agreement, which rule is at present in use. 2After an agreement has been made that suit shall not be brought, and it is subsequently agreed that it may be, the former agreement is annulled by the latter one; not indeed by operation of law, as one stipulation is extinguished by another, where this is the intention of the parties, because the law governs stipulations, and in contracts all depends upon the facts; therefore an exception is rebutted by a replication. On the same principle it happens that the first agreement will not release the sureties. But where the first agreement was of such a character that it extinguished the right of action, as, for instance, in a case of injury, suit cannot subsequently be brought after making the agreement that this can be done; because the first right of action was lost, and an agreement made afterwards has no effect to bestow a right of action, and an action for injury cannot be based on a contract, but only on insulting behavior. We say that the same rule applies in the case of bona fide contracts, where the agreement annuls the entire obligation, as, for example, in the case of a purchase; for the prior obligation is not revived by a new contract, but it would be an advantage to it. But where the entire contract was not abrogated, but something in it was excluded, the second agreement acts as a renewal of the first. This can take place in an action for dowry, for example, where a woman makes an agreement that her dowry shall be restored to her without delay, and afterwards enters into one that it shall be returned to her at the time authorized by law; in this instance the dowry will revert to her in accordance with the law, nor can it be stated that the condition of the dowry becomes any worse by reason of the agreement; for as often as the right of action for a dowry resumes the condition with which the Law of Nature invested it, the state of the dowry does not become worse, but is restored to its original form. This opinion was also held by Scævola. 3Ad Dig. 2,14,27,3BOHGE, Bd. 2 (1871), S. 293: Ungiltigkeit des im voraus erklärten Verzichts auf Schadensersatz aus grobem Verschulden. Pactum ne dolus praestetur.ROHGE, Bd. 4 (1872), S. 81: Ungiltigkeit des im voraus erklärten Verzichts auf Schadensersatz aus grobem Verschulden. Pactum ne dolus praestetur.It cannot be provided by agreement that a person shall not be responsible for bad faith; for although a party may agree not to bring suit for a deposit, he seems by the terms of the contract to agree not to bring an action on the ground of fraud, and an agreement of this kind can be pleaded. 4Agreements which contain immoral provisions should not be observed; as, for instance, if I agree not to sue you for theft or injury, if you commit them; for it is proper that the fear of punishment for theft or injury should exist. After these offences have been committed, however, we can make an agreement. In like manner, I cannot agree that I will not apply for an interdict for violence, so far as this affects the interest of the public. And, in general, where the agreement extends beyond the interest of individuals, it should not be observed. And, above all things, it must be borne in mind that an agreement made with reference to one thing or to one person, shall not injure another thing or another person. 5Where you owe me ten aurei, and I contract not to sue you for twenty, it is established that you are entitled to an exception on the ground of contract, or on the ground of fraud, to the amount of ten aurei. Again, if you owe me twenty aurei, and I agree to only sue you for ten; the result will be that, if you oppose an exception to me, I can only exact from you the payment of the remaining ten. 6But where, having stipulated for ten aurei, or Stichus, I make an agreement with you for ten, and then bring suit for Stichus or the ten aurei, if an exception is pleaded on the ground of contract, the right of action will be absolutely extinguished; for, as the entire obligation will be discharged by payment, or by a suit, or by a lease of one of the two things; so, when an agreement is entered into not to bring suit for one thing, the entire obligation is disposed of. But where it is understood between us that ten aurei shall not be given to me, but that Stichus shall be, I can legally bring suit for Stichus, and no exception can be pleaded against me. The same rule applies where an agreement was made not to bring suit for Stichus. 7But where you owe me a slave in general terms, and I agree not to bring suit for Stichus, an exception on the ground of contract can be pleaded against me, if I bring suit for Stichus; but if I bring suit for another slave, I am acting properly. 8Moreover, if I make an agreement not to bring suit for an estate, and, acting as heir, I bring suit for certain pieces of property, an exception on the ground of contract can be pleaded against me with respect to what is agreed upon; just as if the agreement had been that I should not sue for a tract of land, and I bring an action for the usufruct of the same; or, having agreed not to bring suit for a ship, or a building, I bring an action for certain parts of them, after they have been demolished; unless there is some express understanding to the contrary. 9Where a release is not valid, it is held to be understood by tacit agreement that suit shall not be brought. 10A slave cannot make an agreement on behalf of the heir who is about to enter upon the estate, because the latter is not yet his master; but if the agreement was made with reference to property, it can be acquired by the heir.

Ad Dig. 9,2,40ROHGE, Bd. 4 (1872), S. 417: Zulassung einer Schadensklage wegen Vernichtung einer bedingt lautenden Schuldverschreibung pendente conditione.Paulus, On the Edict, Book III. Under the Lex Aquilia, if I allege that a note belonging to me, and in which it was stated that a sum of money was owing to me under a condition, has been defaced; and, in the meantime, I am able to prove this by witnesses who may be unable to testify at the time when the condition is fulfilled, and I state the facts in a few words in court and establish this to the satisfaction of the judge, I ought to succeed; but the payment of the sum for which judgment is rendered can only take place when the condition upon which the debt depended shall be complied with; and if it should fail, the judgment will have no force or effect.

Paulus, On the Edict, Book III. With reference to the offences of slaves what are we to understand by the “Knowledge of the owner”? Does it mean that the act was done by his advice, or that he merely saw it done, although he could not prevent it? For suppose that a slave who was taking measures to obtain his freedom commits the act, with the knowledge of his owner, or pays no attention to his owner; or suppose that the slave is on the opposite side of a river and commits an injury while his master sees him, but does it contrary to his will? It is better, however, to say that we must understand the term “knowledge” to signify that a party is able to prevent the deed, and this must be understood through the entire Edict so far as the term “knowledge” is concerned. 1Where a slave belonging to a stranger commits an illegal act with my knowledge, and I purchase him; a noxal action will be granted against me, because it cannot be held that he acted with the knowledge of his owner as at that time I was not his owner. 2Where an owner is liable on account of his knowledge, it should be considered whether an action should be granted also with reference to the slave; unless the Prætor intended that a single penalty only should be exacted from the owner. Therefore should the malice of the slave be unpunished? This would be unjust, for indeed the owner is liable in both ways, still when one penalty, that is, whichever one the plaintiff selects, is exacted, the other cannot be collected. 3If the surrender of the slave by way of reparation is not mentioned, and proceedings are brought against the owner on account of his being aware of the offence, when, as a matter of fact, he was not aware of it, and the case is dismissed and the trial terminated; the plaintiff will be barred by an exception on the ground of res judicata, if he attempts to proceed further in order to obtain the surrender of the slave; for the reason that the matter was previously brought to an issue in the former trial and is now at an end. But, while the first trial is proceeding, the plaintiff has the right to change his mind, if he is attempting to prove the knowledge of the owner, and have recourse to a noxal action. On the other hand also, if he has proceeded with the noxal action against the party who had knowledge, no other action will be granted him against the owner if he left out the surrender of the slave by way of reparation; but if, during the trial, he still wishes to prove the knowledge of the owner, he cannot be prevented from doing so.

Paulus, on the Edict, Book III. Whenever an oath is taken with reference to property, it cannot be dispensed with in favor of a parent or a patron, and an oath is exacted with reference to property; for instance, where money is borrowed and the plaintiff swears that he should be paid, or the defendant swears that he is not obliged to pay. The same rule applies where an oath is required with reference to mere promise to pay at a certain time.

The Same, On the Edict, Book III. There are certain contracts by which interest is due, just as in the case of a stipulation. For if I give ten aurei to be transported by sea, on condition that if the ship arrives safely I will be entitled to the principal together with a certain amount of interest, it must be held that I can receive the principal and interest.

Paulus, On the Edict, Book III. A guardian can renew an obligation for the benefit of his ward, and can bring a case into court, but donations made by him do not prejudice the ward.

Paulus, On the Edict, Book III. We are not bound by the form of the letters, but by the meaning which they express, as it has been decided that writing shall not have less validity than what is meant by words uttered by the tongue.

Paulus, On the Edict, Book III. A popular action is granted to a person whose rights are unimpaired, that is to say, to one who can bring suit under the Edict.

The Same, On the Edict, Book III. The clause, “It will be necessary,” applies to the present, as well as to the future time. 1Exception is not included in the term action.