Ulpianus, On the Edict, Book XXVII. Where the plaintiff tenders an oath with reference to money which had been merely promised, and the defendant swears, he can avail himself of an exception if an action is brought against him on the promise; but if he is sued for the principal—that is on account of the prior obligation—an exception cannot be pleaded, unless he swore with respect to this also, after the plaintiff had tendered him the oath.

The Same, On the Edict, Book XXVII. In the case of stolen property suit for recovery can be brought for the articles themselves; but can this be done only so long as they still exist, or where they have ceased to be in existence? If, indeed, the thief has surrendered them, then there is no doubt that suit for their recovery cannot be brought; but if he did not surrender them, a right of action for the recovery of their value still remains, for the articles themselves cannot be delivered. 1Ad Dig. 13,1,8,1ROHGE, Bd. 3 (1872), S. 96: Die allein für den Fall des furtum gegebene Vorschrift läßt keine analoge Ausdehnung auf nicht erfüllte Lieferungsverträge zu.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 280, Note 15.Where an action is brought for the recovery of stolen property, the question arises at what time the appraisement of its value should be made? It is, however, established that the time must be considered when the property was of the greatest value it ever possessed, and especially since a thief will not be released by giving up property which is deteriorated; for a thief is considered to be always in default. 2Finally, it must be said that the profits are also included in this action.

Ulpianus, On the Edict, Book XXVII. Ad Dig. 13,3,1 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 156, Note 1.He who brings suit for a certain sum of money must make use of the action to which the clause, “Where a certain demand is made,” refers: but a party who sues for any other kind of property must do so by means of a Triticarian Action. And, generally speaking the property to be sued for in this action is anything except a definite sum of money, whether it is established by weight or by measure, and whether it is movable or a part of the soil. Therefore, we may also bring suit for a tract of land, whether it is under perpetual lease, or whether anyone has stipulated for a right, as, for instance, an usufruct, or a servitude attaching to either kind of estate. 1No one can, by means of this action, bring suit for his own property, except where he is permitted to do so in certain cases; as, for instance, in an action based on theft, or where movable property has been taken away by force.

The Same, On the Edict, Book XXVII. If it is asked, in this action, to what time the appraisement of the property for which suit is brought should date back; the better opinion is, as Servius says, that the time when judgment was rendered against the defendant ought to be considered. For, if the property has ceased to exist at the time of death, according to Celsus, we must grant some latitude, and not make the estimate from the very last moment of life, lest it be reduced to a very small amount; for instance, where a slave is mortally wounded. In either case, however, if the property is deteriorated after default, Marcellus states in the Twentieth Book that an estimate must be made of the amount to which the property is deteriorated, hence, if the party delivered a slave who, after default, had lost his eye, he is not released; and therefore the estimate must be reckoned from the date of the default.

Ulpianus, 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.

Ulpianus, 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.

Ulpianus, On the Edict, Book XXVII. In this Edict the Prætor favors natural equity, as he protects promises made by consent, since a breach of good faith is a serious matter. 1The Prætor says, “Where a person makes a promise for a sum of money which is due.” The term “person” must be understood to mean anyone at all, for women also are liable for promises to pay, if they do not act as sureties. 2Although nothing is stated in this Edict with reference to a minor, still, he is not liable for a promise without the authority of his guardian. 3The question arises whether, if a son under paternal control makes such a promise, he will be liable? I think that it is true that he will be liable, and that his father also will be liable to the extent of his son’s peculium. 4Ad Dig. 13,5,1,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 82, Note 14.Where anyone makes a stipulation which is void, but intended to make a stipulation and not a promise to pay; it must be held that the creditor cannot institute proceedings on account of a promise made, because the debtor did not act with the intention of making a promise, but of entering into a stipulation. 5The question has been asked whether a promise can be made for something else than what is due? But since it. has already been established that one thing can be delivered instead of another, there is nothing which prevents a promise being made for something else than what was due; for example, where a party who owes a hundred aurei promises grain of that value, I think that the promise is valid. 6The payment of a debt can be promised, no matter what the consideration may be; that is to say, no matter what the contract is, whether it is for a certain or an uncertain amount, and whether the party owes the purchase-money due on a sale, or money owing on account of a dowry, or on account of guardianship, or by reason of any other contract whatsoever. 7Even a debt due by natural law is sufficient. 8A person who is liable to a prætorian action, but not under the Civil Law, is liable for a promise; for it is held that what is due by Prætorian Law is a debt. Therefore, if a father or the owner of a slave makes a promise for which an action De peculio can be brought against him, he will be liable for the amount which there was in the peculium at the time when the promise was made; but if he promised more than that in his own name, he will not be bound for the excess.

Ulpianus, On the Edict, Book XXVII. Where a husband promised a larger dowry than he is able to give, as he contracts a debt he is liable for all that he promises; but judgment shall be rendered in favor of the wife for the amount that he is able to pay. 1If anyone promises a sum of money which he owes by the Civil Law but does not owe by Prætorian Law, that is, because he is entitled to an exception; the question arises whether he is liable on account of the promise? It is true (as Pomponius states) that he is not liable, because the money which was promised is not due under Prætorian Law. 2Where anyone who owes money under both the Civil and Prætorian Law is bound by an obligation which is to become operative at some future time, will he be liable under a promise? Labeo says that he will be, and Pedius approves of his opinion. Labeo adds that this kind of promise was introduced mainly on account of those pecuniary obligations for which actions could not yet be brought, and I am not unwilling to adopt this opinion; for the principle is advantageous that a party who is bound from a certain time, by promising to make payment at that time will be liable.

Ulpianus, On the Edict, Book XXVII. Where anyone promises to pay at Ephesus, and also promises to pay at some other place, it is settled that he will be liable. 1Ad Dig. 13,5,5,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 284, Note 8.Julianus thinks that an envoy who promised to repay at Rome something which he had received in a province can be sued there, and this opinion is correct; but if he promised to make payment at Rome, not while he was there, but while he was still in the province, an action on the promise will be refused. 2What we have stated, namely, that where a debt is owing a promise to pay it must have reference to the very property itself, does not by any means require that the party to whom the promise was made should be already a creditor; for if you promise to pay what I owe, you will be liable, and if a promise is made to me to pay what is due to you, an obligation arises. 3Julianus also says in the Eleventh Book: “Titius wrote me a letter as follows, ‘I have stated in writing under the direction of Seius, that, if it should be proved that he owes you anything, I will give you security for the debt, and will pay it without any dispute.’” Titius, then, is liable for the payment of money promised. 4But where anyone promises that another will make payment, and not that he will do so for another, he is not liable; and this Pomponius states in the Eighth Book. 5Moreover, if you promise that you will pay me, you will be liable; but if you promise me that you will pay Sempronius, you will not be liable. 6Julianus says in the Eleventh Book of the Digest that a promise can be made to an agent; and this Pomponius holds must be understood to signify that you may promise to pay the agent, but not the principal. 7Moreover, a promise can be made to the guardian of a ward and to the representative of a municipality, as well as to the curator of an insane person. 8These persons will also be liable on any promises which they themselves make. 9Ad Dig. 13,5,5,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 73, Note 13a; Bd. II, § 316, Note 11.Where a promise is made to the representative of a municipality, or to the guardian of a ward, or to the curator of an insane person or of a minor, in such a way that payment shall be made to the municipality, or the ward, or the insane person, or the minor; I am of the opinion that an equitable action should be granted to the municipality, or the ward, or the insane person, or the minor aforesaid. 10It is also established that a promise can be made even to a slave, and if this is done to the effect that payment shall be made either to the owner of the slave or to the slave himself, the slave will acquire a certain obligation for his master.

Ulpianus, On the Edict, Book XXVII. Even where a promise is made to a son under parental control it is valid. 1If I stipulate for payment to be made to me or to Titius, Julianus says that a promise cannot be made to Titius on his own account, because he has no right of action to recover the money, although payment can be made to him.

Ulpianus, On the Edict, Book XXVII. Therefore, a promise will also be valid so long as what is promised is actually due, even though, in the meantime, no one should appear who owes anything; as, for example, where, before the estate of the debtor is entered upon, or while he is held captive by the enemy, some one promises that he will make payment; for Pomponius states that a promise of this kind is valid since the money which is promised is in fact due. 1Where a man owing a hundred aurei promises to pay two hundred, he will only be liable for a hundred, because that is the amount of the money due; and therefore if anyone makes a promise to pay the principal together with the interest which is not due, he will be liable only for the principal.

Ulpianus, On the Edict, Book XXVII. Where a man promises to pay he will be liable, whether he specifies a certain amount or not. 1If anyone promises that he will give a pledge, then, if necessity for a pledge arises, even a promise of this kind must be admitted. 2Where anyone promises that some certain person will act as his surety, Pomponius states that he will, nevertheless, be liable; but what if the party refuses to act as surety? I think that he who made the promise will be liable, unless there was some other understanding, but what if the surety should die beforehand? If there should be a default, it is only just that the party who made the promise should be liable either to the amount of the interest of the creditor, or to offer as surety some other person not less solvent; but where there was no default, I rather think that he will not be liable. 3We can make a promise for payment whether we are present or absent; just as we can make an agreement by a messenger or in our own proper persons, and in any terms that we may choose.

Ulpianus, On the Edict, Book XXVII. Where two of us make a promise for payment as two principal debtors, an action can be brought for the entire amount against either of us. 1Anyone can make a promise to pay at a certain place or time, and suit may be brought not only at the place mentioned in the promise but anywhere, as in the case of an arbitrarian action. 2The Prætor says: “If it should be apparent that the party who made the promise neither paid the debt nor did what he should have done, and the plaintiff was not to blame because the act which was promised was not performed.” 3Therefore, if it was not the plaintiff’s fault, a right of action will exist, even though he was prevented by the nature of the circumstances; but the better opinion is that the defendant is entitled to relief. 4There is some occasion for doubt with reference to the words of the Prætor, “The debtor did not do what he should have done,” whether his words relate to the time mentioned in the promise, or whether we should refer them to the date when issue was joined; and I think that they refer to the time mentioned in the promise.

Ulpianus, On the Edict, Book XXVII. Ad Dig. 13,5,18 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 345, Note 11.Again, the words of the Prætor, “The plaintiff was not to blame,” also raise some doubt. Pomponius is uncertain, where the plaintiff was not responsible for the promise not being fulfilled at the time indicated, but was, either before or afterwards. I am of the opinion that these words also should be deemed to refer to the time mentioned in the promise. Thus, if the plaintiff having been prevented by violence, by illness, or by bad weather, does not appear; Pomponius states that he himself must suffer the consequences. 1Ad Dig. 13,5,18,1ROHGE, Bd. 11 (1874), Nr. 110, S. 347, 352: Vereinbarung zu derselben Leistung, welche dem Contrahenten vorher obgelegen, unter Verzicht auf die Einrede der Verjährung.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 112, Note 5.With reference to what is added, namely: “And that the money for which payment was promised was actually due,” this requires a more complete explanation; for, in the first place, it means that if a debt was due at the time when the promise was made, but not now, the promise will, nevertheless, hold, because the right of action is retroactive. Hence as Celsus and Julianus state, where a party is bound by an obligation on which suit can be brought against him only during a certain time and he promises payment, he should be held liable; even though the time during which suit could be brought has elapsed after the promise was made. Therefore, even if he promises that he will pay after the time of his obligation has expired, Julianus still thinks that the same rule will apply; since at the time when he made the promise he was under an obligation, although he referred it to a date when he would not have been liable. 2It is proper here to consider whether this action includes a penalty or is merely for the collection of the claim, and the better opinion is, as Marcellus himself thinks, that it is brought only for the collection of the claim. 3It was formerly a matter of doubt whether a party who brought this suit lost his right of action for the principal claim; and the safest opinion is that, when payment is made in a case of this kind, there will be a release from liability, rather than when issue is joined, since payment will benefit both obligations.

The Same, On the Edict, Book XXVII. According to a Rescript of the Divine Marcus, nothing can be demanded after a decision has been rendered, or a case has been decided by oath, or the defendant has confessed judgment in court, for the reason that a confession of judgment made in court is considered the same as a judgment.

Ulpianus, On the Edict, Book XXVII. Where anyone confesses that he owes Stichus, judgment should be rendered” against him; even if Stichus is already dead, or died after issue was joined in the case.

Ulpianus, 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.

Ulpianus, On the Edict, Book XXVII. The head of a household who is free cannot have a peculium, just as a slave cannot have an estate.