Ulpianus, On Sabinus, Book XLVII. Where anyone has promised to appear in court but does not mention the penalty to which he will be liable if he should not appear, it is certain that suit can be brought against him for a sum equal to the plaintiff’s interest; and this Celsus also stated.

Ulpianus, On Sabinus, Book XLVII. Where a party has promised to produce a slave in court in the same condition, and he is produced after having been set free; if a capital offence, or one implying the commission of injury is involved, he is not properly produced; because one kind of punishment is inflicted on slaves by lashes in the case of injury, and another is inflicted upon a freeman, as, for instance, a pecuniary fine. So far, however, as other noxal actions are concerned, he is held to be in a better condition.

Ulpianus, On Sabinus, Book XLVII. Where anyone promises that a party shall appear in court, he ought to see that he does so in the same legal condition. To appear in the same condition means that he shall do so in such a way that the plaintiff will not be any the worse in the prosecution of the case, even if it may be more difficult for him to obtain satisfaction of his claim; and although this may be the case, it can be said that the party is still in the same legal condition; or even if he may have contracted new obligations, or have lost money, he still is held to be in the same legal condition; therefore, when anyone appears after judgment has been obtained against him, he is still held to appear in the same legal condition.

The Same, On Sabinus, Book XLVII. Where anything is owing upon a condition which must inevitably take place, it cannot be recovered by an action after it has been delivered; although if it had to be given under another condition whose fulfillment was uncertain, an action could be brought for its recovery, even if it had been previously delivered.

The Same, On Sabinus, Book XLVII. Where two parties became sureties for a debtor for ten aurei, and the debtor afterwards paid three, and then each of the sureties paid five, it was decided that he who paid last can bring suit for the recovery of three aurei; and this is reasonable, because after three had been paid by the debtor, seven remained due, and when these were paid, three were paid which were not due.

Ulpianus, On Sabinus, Book XLVII. Where a person promises to pay at a certain place, he can do so at no other place than the one for which he promised, if the stipulator is unwilling.

Ulpianus, On Sabinus, Book XLVII. If I become surety for you by the direction of another, I cannot bring an action on mandate against you, just as happens when someone makes a promise having in view the mandate of another. But if I do this with reference, not to the mandate of one person but to that of two, I will also be entitled to an action of mandate against you, just as, if two parties had directed me to lend you money, I would be entitled to an action against both.

The Same, On Sabinus, Book XXXV. Where a husband, for the purpose of renewing an obligation makes a stipulation with reference to a dowry promised by a father, or by anyone else, the dowry begins to be at his risk, just as it was formerly at the risk of the woman.

Ad Dig. 44,7,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 288, Note 11.The Same, On Sabinus, Book XLVII. Natural obligations should not be considered merely because no action can be brought on account of them, but also for the reason that where money has been paid which was not due it cannot be recovered.

The Same, On Sabinus, Book XLVII. It must generally be understood that, if anyone should state in writing that he has become a surety, all legal formalities are considered to have been complied with.

Ulpianus, On Sabinus, Book XLVII. If we are mistaken in the name of the slave whom we stipulate shall be delivered to us, it has been decided that the stipulation will be valid so long as no mistake was made with reference to its object.

Ulpianus, On Sabinus, Book XLVII. Novation does not take effect where there are two promisors. For although one may answer first, and the other bind himself after an interval, the result will be that we must hold that the first obligation continues to exist, and that the second is accessory. It makes little difference whether the parties answered together, or separately, when it is their intention that there shall be two joint-debtors, and that a novation shall not take place. 1Where there are two joint-promisors, the entire amount can be demanded of one of them. For it is the nature of the obligation contracted by two joint-promisors that each one of them shall be bound for the entire amount, and that it can be demanded from either; and there is no doubt that half can be demanded from each one, just as can be done from the principal debtor and the surety. For, as there is but one obligation, only one sum of money is due, and if one of them pays it, both will be discharged from liability; or if it is paid by the other, discharge from liability will also result.

The Same, On Sabinus, Book XLVII. I stipulate with a debtor, but do not take a surety, and afterwards I wish a surety to be furnished. If I add a surety, he will be liable. 1It makes little difference whether I bind the surety absolutely, or from a certain time, or under some condition. 2A surety can, moreover, be furnished for a future as well as for a past obligation, provided this obligation is a natural one.

Ulpianus, On Sabimis, Book XLVII. In Greek, a surety is taken as follows: “In my good faith, I order, I say, I wish,” or “I wish, with a certain determination of mind.” If, however, anyone should say “I affirm,” it will be the same as if he had uttered the words, “I say.” 1It should also be remembered that a surety can be furnished for every kind of obligation, whether with reference to the property, verbally, or by consent. 2It should also be remembered that a surety can be taken for anyone who is liable under the Prætorian Law. 3A surety can be received after issue has been joined in the case, because the civil and natural obligation remains. This was admitted by Julianus, and is our practice. Hence, if the principal debtor loses his case, the question arises whether he can have recourse to an exception, for he is not released by operation of law. If he is not accepted for the payment of the judgment, but merely for the proceedings in court, it is very properly held that he can make use of an exception. Where, however, he has been taken for the entire case, he will not be entitled to an exception. 4Where a surety is given by a testamentary guardian he will be liable. 5If, however, the action is derived from a crime, we think that the better opinion is that the surety will be liable. 6And, generally speaking, no one doubts that a surety can be received in all kinds of obligations. 7The following rule is applicable to all those who are liable for others: namely, if they are made use of in order to impose more severe terms upon them, it has been decided that they will not be at all responsible. It is clear that they can be accepted in matters of inferior importance, for which reason a surety is very properly taken for a small amount. Again, the principal debtor being absolutely liable, the surety can be bound from a certain time, or under some condition. If, however, the principal debtor should be liable under a condition, and the surety absolutely, he will be released. 8If anyone should stipulate for Stichus, and receive a surety as follows, “Do you promise, on your good faith, to deliver Stichus, or pay ten aurei?” Julianus says that the surety will not be bound, because his condition is rendered harder, so that if Stichus should happen to die, he would still be liable. Marcellus, however, says that he is not liable, not only because his condition is rendered more onerous, but also for the reason that he has been accepted rather for another obligation. Finally, a surety cannot be received for a person who has promised to pay ten aurei, as follows, “Do you promise to pay ten aurei, or deliver Stichus?” although, in this instance, his condition is not rendered more burdensome. 9Julianus also says that where anyone has stipulated for a slave, or ten aurei, and takes a surety as follows, “Do you promise to deliver a slave, or pay ten aurei, whichever I wish?” the surety will not be bound, because his condition is rendered more onerous. 10On the other hand, where anyone stipulates for “A slave, or ten aurei, whichever the stipulator wishes,” he can properly take a surety under the following terms, “Ten aurei, or a slave, whichever you wish,” for Julianus says that in this way the condition of the surety is improved. 11But if I interrogate the principal debtor as follows, “Stichus and Pamphilus?” and the surety as follows, “Stichus, or Pamphilus?” I shall put the question properly, because the condition of the surety is rendered less burdensome. 12There is no doubt whatever that one surety can be taken for another surety.

The 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.

Ulpianus, On Sabinus, Book XLVII. When a surety has become responsible for ten aurei for two persons, he will be liable for twenty; and whether he pays twenty for them together, or ten for each one, he will release both debtors from liability. If, however, he pays five, let us see which of the two debtors he will release to that extent. The one mentioned in the release will be discharged from liability for that amount, or if this does not appear, the sum should be credited upon the oldest debt. The same rule will apply where fifteen aurei are paid, if it is apparent what the intention was with reference to ten of them, and the remaining five will be credited on the other obligation. But where the intention cannot be ascertained, ten aurei will be credited on the oldest note, and five on the other.

The Same, On Sabinus, Book XLVII. Where several stipulations have been entered into, and the promisor demands a release, as follows, “Do you acknowledge the receipt of what I have promised you?” and it is clear to what reference is made, it alone will be disposed of by the release. If this is not clear, all of the stipulations will be extinguished, provided we bear in mind that if I had intended to grant the release of one debt, and you had asked for the release of another, the transaction will be void.

The Same, On Sabinus, Book XLVII. The nature of the sophistry which the Greeks call a concise syllogism is disclosed where, by making slight changes in something which is absolutely true, a conclusion is arrived at which is evidently false.