Ad Dig. 4,8,46BOHGE, Bd. 2 (1871), S. 156: Gegenstand des Schiedsvertrages können auch künftige Rechtsverhältnisse sein. Bezeichnung der Person der Schiedsrichter.ROHGE, Bd. 3 (1872), S. 55: Gegenstand des Schiedsvertrages können auch künftige Rechtsverhältnisse sein. Bezeichnung der Person der Schiedsrichter.ROHGE, Bd. 7 (1873), S. 331: Gegenstand des Schiedsvertrages können auch künftige Rechtsverhältnisse sein. Bezeichnung der Person der Schiedsrichter.Paulus, On Sabinus, Book XII. An arbiter can make an award with reference to matters, accounts, and disputes, which in the beginning existed between the parties who submitted their affairs to arbitration, but not with reference to matters which took place subsequently.

Paulus, On Sabinus, Book XII. Where a suit has been brought either for the partition of an estate, for the division of property held in common, or for the establishment of boundaries, and one of the parties should die leaving several heirs; the case cannot be separated into parts, but all the heirs must either accept it as it is, or they must appoint some one as agent against whom suit may be brought as the representative of all of them.

Paulus, On Sabinus, Book XII. It is settled that, where illegal interest is united with the principal, the said interest will not be due, but this does not affect the principal.

Paulus, On Sabinus, Book XII. The woman does not lose her right of action unless the marriage took place, for if it did not, the debtor will remain liable to her.

Paulus, On Sabinus, Book XII. Not, however, to the extent that the legacies can be claimed at once, for we hold that payment should be made on a certain day, even though the time has not yet arrived.

The Same, On Sabinus, Book XII. Whatever acts we perform which derive their origin from our contracts are void, unless the beginning of the obligation is ours personally; and hence we can neither stipulate, purchase, sell, or contract in such a way that another can properly bring an action on this ground in his own name.

Paulus, On Sabinus, Book XII. Some stipulations relate to giving, and others have reference to acts to be performed. 1Of all these examples, some admit of partial payment, as, for instance, where we stipulate to pay ten aurei. Others do not admit of this, and in their nature are not susceptible of division; for instance, when we stipulate for a right of way, a right of passage, or a right to drive. Some, by their nature, are susceptible of division, but, unless the entire thing is given, the stipulation is not carried out; for example, when I stipulate in general terms for a slave, a dish, or any kind of a vase. For if one part of Stichus is furnished, there is, as yet, no discharge of any part of the stipulation, and it may be immediately demanded, or remain in suspense until another slave is furnished. The stipulation of furnishing either Stichus or Pamphilus is of the same kind. 2Therefore, in stipulations of this description, heirs cannot be released by merely giving a part, so long as all of them do not give, the same thing; for the condition of the obligation is not changed by the person of the heirs. Therefore, if what is promised is not susceptible of division, as, for example, a right of way, each of the heirs of the promisor will be liable for all of it. But in the case where one of the heirs has paid in full, he has recourse against his co-heir by an action in partition. Hence it happens, as Pomponius says, that each of the heirs of a person who has stipulated for a right of way, or a right of passage, is entitled to an action for the whole. Some authorities, however, think that in this case the stipulation is extinguished, because a servitude cannot be acquired by each of them separately, but the difficulty of delivery does not render the agreement void. 3If, however, having stipulated for a slave, I bring an action against one of the heirs of the promisor, only the share of the others due under the obligation remains to be paid. This is also the case when a release is granted to one of the heirs. 4The same rule which we have mentioned, as affecting the heirs, is applicable to the promisor himself and his sureties. 5Again, if the stipulation has reference to an act to be performed, for instance, if I stipulate that nothing shall be done either by yourself or by your heir to prevent me from passing or driving, and one of several heirs prevents me, his co-heir will also be liable; but they can recover what they have given him by an action in partition. Julianus and Pomponius also adopt this opinion. 6On the other hand, if the stipulator should die after having provided that he and his heir should enjoy a right of way, and one of his heirs should be prevented from doing so, we say that it makes a difference whether the stipulation is entirely violated, or this is done only with reference to the share of him whose right was interfered with. For if a penalty is added to the stipulation, it will be incurred in full; but those who have not been prevented will be barred by an exception on the ground of fraud. If, however, no penalty has been imposed, then the stipulation will only be violated so far as the share of him who was prevented is concerned.

Paulus, On Sabinus, Book XII. We say the same thing, if I have stipulated that no fraud should be committed by you, or by your heir; and either the promisor or stipulator should die, leaving several heirs. 1Cato says, in the Fifteenth Book, that where the penalty of a certain sum of money is promised, if something else should be done, and the promisor is dead, and one of several heirs should commit the act which is provided against, the penalty will be incurred by all the heirs, each in proportion to his share of the estate, or it will only be incurred by one according to the amount of his share. If the act provided against was committed by all the heirs, and the object of the stipulation was indivisible, as, for example, where a right of way is granted for the reason that it cannot be divided, the act is considered, to a certain extent, to have been done by all. But where provision is made for something which is susceptible of division, for instance, that legal proceedings cannot any longer be prosecuted, then the heir who violated the stipulation will alone incur the penalty in proportion to his share. The reason for this difference is because, in the first instance, all the heirs are considered to have committed the act, since the agreement that you shall do nothing by which I may be prevented from passing or driving cannot be violated except in its entirety. But let us see if what appears in the following stipulation is not the same thing, but rather something that resembles it, namely: “Do you promise that Titius and his heir will ratify this?” For in this stipulation he alone will be liable who does not ratify the act, and can alone bring an action for what was demanded. This opinion was also held by Marcellus, although the master himself cannot make a partial ratification. 2If he who stipulated for double the amount should die, leaving several heirs, each one of them can bring an action in proportion to his share of the estate, on account of the eviction of what he is entitled to. The same rule will also apply to a stipulation relating to an usufruct, for the prevention of threatened injury, and notice to discontinue a new work. After notice to discontinue a new work, partial restitution to its former condition cannot be made. This rule has been adopted by stipulators on account of its convenience. Partial restitution cannot be made by a promisor, nor can a partial defence be instituted by him.

Paulus, On Sabinus, Book XII. If I stipulate for an act to be performed which Nature does not permit to take place, the obligation does not become operative, any more than when I stipulate that something shall be given which is not possible, unless it is the fault of someone that this cannot be done. 1Again, an obligation does not arise, if the object of the stipulation is something which is forbidden by law, where the cause of the prohibition is perpetual; for instance, if anyone should stipulate to marry his own sister. And even if the cause should not be perpetual, as happens in the case of an adopted sister, the same rule applies, because an offense is immediately committed against good morals. 2If in hiring, leasing, sales, and purchases, the other party does not answer the interrogatory, but, nevertheless, consents to what has been answered, the agreement will be valid; for contracts of this kind are not confirmed by words as much as by consent.

Paulus, On Sabinus, Book XII. If I stipulate for a certain sum of money, for instance, what is in a chest, and it is lost without the fault of the promisor, nothing will be due to us.

Paulus, On Sabinus, Book XII. A master, by stipulating for his slave, acquires for himself, as a father also does, if he stipulates for his son; so far as this is permitted by the laws.

Paulus, On Sabinus, Book XII. And, therefore, if nothing is decided, the stipulation will be void, so that if a penalty has been added it can not be enforced.

Paulus, On Sabinus, Book XII. We can legally stipulate for payment on the hundredth kalends, because the obligation is present, and payment is postponed until the prescribed time arrives. 1Anything which consists of an act cannot be deferred until the death of the person, as for instance, “Do you promise to come to Alexandria when you die?” 2Ad Dig. 45,1,46,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 93, Note 4.If I should stipulate as follows, “When you please,” some authorities say that the stipulation is void; others hold that it is void if you should die before you make up your mind; which is true. 3Ad Dig. 45,1,46,3ROHGE, Bd. 16 (1875), Nr. 109, S. 427, 429: Ergänzung unbestimmt gelassener Vereinbarungen. Arbitrium boni viri.This stipulation, however, “If you are willing to pay,” is held to be invalid.

Paulus, On Sabinus, Book XII. A part of a stipulation can be annulled by a release, as where anyone says, “Do you acknowledge the receipt of five of the ten sesterces which I have promised to pay you?” And also if anyone should ask, “Do you acknowledge the receipt of half of what I have promised you?”

Paulus, On Sabinus, Book XII. One method of acquisition is the liberation of an owner from an obligation; and therefore a slave in whom someone has the usufruct can, by obtaining a release, discharge the usufructuary, because he will be considered to acquire the property of the latter. Even when we have only the use of property, the same rule applies. We say the same thing with reference to a person who is serving us in good faith as a slave, as well as to others subject to our authority. 1If, however, I release the slave who has himself promised to pay me, I cannot avail myself of any prætorian action against his master, which is granted with reference to peculium, or on account of the benefit accruing to property. 2Where a slave belonging to an estate, before it is entered upon, asks for a release which the deceased promised to give, I think that the better opinion is that he will be freed from liability, so that, in this manner, the estate itself will be released. 3But even if the master is in the hands of the enemy, it must be said that a release is confirmed by the right of postliminium; for a slave can stipulate for his master who is in the hands of the enemy.

Paulus, On Sabinus, Book XII. Unless the release agrees with the stipulation, and what is stated in the release is true, it is imperfect; because words cannot be annulled by words, unless they agree with one another.