Ulpianus, On Sabinus, Book XLVIII. It frequently occurs with reference to suits for inofficiousness that different decisions are rendered in one and the same case. For what if the brother who institutes proceedings and the appointed heirs are persons occupying different legal positions? If this should be the case, the deceased is held to have died partly testate and partly intestate.

Ulpianus, On Sabinus, Book XLVIII. If my slave lends you an article belonging to me, and you were aware at the time that I was unwilling that it should be lent to you; an action on loan, as well as one for theft, will lie in my favor, and I will be entitled to an action to recover the property on the ground of theft, as well.

The Same, On Sabinus, Book XLVIII. The debtor of a woman, by her order, bound himself to pay the money to her husband, and the latter then released him by order of his wife. The loss was sustained by the woman. In what way should we understand this? Should it be on the ground of the dowry, or for some other reason? The decision seems to have been made with reference to the debtor, who gave the promise to pay the dowry. It must be ascertained whether this was done before or after the marriage; for it is held to be a matter of importance whether the discharge was given after the marriage took place, since if the dowry was already constituted, the husband will lose it by discharging the debtor. If, however, this was done before the marriage was celebrated, the dowry is held not to have been constituted.

Ulpianus, On Sabinus, Book XXVIII. It certainly should be considered whether the woman will be liable to her husband if she ordered him to discharge her debtor. And I think she will be liable to an action on mandate, and that this right is transformed into a dowry, because the woman is liable to the said action, and because she is held to have lost her property in consequence. If, however, she desires to bring an action on dowry, she ought to set off against her own claim what she has ordered her husband to do.

The Same, On Sabinus, Book XLVIII. Even where the contract with a ward is conditional, the consent of the guardian should be absolute; for his authority must be not conditionally, but absolutely interposed, in order that a conditional contract may be confirmed.

Ulpianus, On Sabinus, Book XLVIII. Where security is given to pay legacies, the day of payment arrives under this stipulation as soon as the legacies begin to be due:

Ulpianus, On Sabinus, Book XLVIII. A stipulation cannot be made except by the words of the two contracting parties, and hence neither anyone who is dumb or deaf, nor a child, can enter into a stipulation; nor can an absent person do so, because the parties must understand one another reciprocally. Therefore, if any one of these persons wishes to make a stipulation, let him do so by means of a slave who is present at the time, and the latter will acquire for him the action based on the stipulation. Likewise, if anyone desires to bind himself, let him order that this shall be done, and he will be bound by his order. 1Where one of the parties present asks a question, and departs before an answer is given him, he renders the stipulation void. If, however, he asks the question while present, and departs, and on his return is answered, he will bind himself, for the intermediate time did not vitiate the obligation. 2Ad Dig. 45,1,1,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 82, Note 14; Bd. II, § 289, Note 1.If anyone should ask a question as follows: “Will you pay?” and the other answers “Why not?” the latter binds himself. This will not be the case if he assents without speaking, for he who assents in this manner is bound not only civilly but naturally; and therefore it is very properly said that even his surety does not become liable for him. 3If anyone, having been simply interrogated, should answer, “If such-and-such a thing is done, I will pay,” it is certain that he will not be bound. And if he should be asked, “Will you pay before the fifth kalends” and he answers, “I will pay on the ides,” he will also not be bound, for he did not answer with reference to what he was asked; and vice versa, if he should be asked under a condition and should answer absolutely, it must be said that he will not be liable. If anything is added or taken from the obligation, it must always be held that it was vitiated, unless the stipulator should immediately accept the difference in the answer; for then a new stipulation will be considered to have been made. 4If when I stipulate for ten aurei, and you answer twenty, it is certain that an obligation is only contracted for ten. On the other hand, if I ask for twenty, and you answer ten, the obligation will only be contracted for ten; for although the amounts must agree, still it is perfectly clear that twenty and ten are involved. 5If I stipulate for Pamphilus, and you promise both Pamphilus and Stichus, I think that the addition of Stichus should be considered superfluous. For when there are as many stipulations as objects, there are, as it were, two stipulations, one of which is useful and the other useless, and the useful one is not vitiated by that which is of no value. 6It makes no difference if the answer is given in a different language. Hence, if anyone interrogates in Latin and he is answered in Greek, the obligation is contracted, provided the reply is suitable. The same rule governs in an opposite case. But is there any doubt whether we shall apply this only to Greek, or also to other tongues; for example, to Punic, Assyrian, or any other language? Sabinus has written upon this point, but the truth is, that any kind of speech can give rise to an obligation, if, however, each of the parties understands the language of the other either himself, or through a faithful interpreter.

Ulpianus, On Sabinus, Book XLVIII. It makes a great deal of difference whether I stipulate for property which I cannot make use of in commerce, or whether someone promises it to me. If I stipulate for something which I have not the right to dispose of in commerce, it is settled that the stipulation is void. If anyone promises me something which he cannot dispose of commercially, he injures himself, and not me.

Ulpianus, On Sabinus, Book XLVIII. If anyone having agreed to bind himself in one way is fraudulently bound in another, he will be liable under the strict construction of the law; but he can have recourse to an exception on the ground of fraud, because anyone who has been rendered liable by fraud is entitled to an exception. The same rule applies if no fraud has been committed by the stipulator, even if the thing itself is fraudulent, for anyone who brings an action under such a stipulation commits fraud by doing so.

The Same, On Sabinus, Book XLVIII. A slave owned in common is the property of all his masters, and does not, so to speak, entirely belong to any of them, but belongs to each in proportion to his undivided interest; so that they hold their shares rather by a mutual understanding than corporeally. Hence, if he stipulates for something, or makes an acquisition in some other way, he acquires for all his owners in proportion to their interest in him. He is, however, allowed to stipulate specifically for any one of his masters, or to receive the property delivered in order to acquire it for him alone. If, however, he does not stipulate specifically for one master, but, by the order of one of them, it is our practice to hold that he acquires the property for the one alone by whose order he made the stipulation.

Ulpianus, On Sabinus, Book XLVIII. Hence, if a slave should happen to have four masters, and stipulates by the order of two of them, he will only acquire for the benefit of those who gave the order; and the better opinion is that he does not acquire for them equally, but in proportion to their ownership. I hold the same opinion, if it is stated that he stipulated for them by name. For if he did not stipulate by the order of all, or for each and all of them by name, we should entertain no doubt that he acquired for all in proportion to their ownership, and not in equal shares. 1Ad Dig. 45,3,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 352, Note 5.If a slave owned in common stipulates with one of two partners specifically for the benefit of the other, payment will be due to him alone. If, however, he stipulates absolutely, without adding anything, the slave will acquire the shares for the other partners, excepting the one of which the promisor is the owner. When he stipulates by order of one of the partners, the rule will be the same as if he had specifically stipulated that payment should be made to the said partner. Sometimes, although he may not stipulate specifically for the benefit of any one of his masters, or by his order, still, it is held by Julianus that he will acquire for him alone; just as where he stipulates for something which cannot be acquired by both, as, for instance, a servitude attaching to the Cornelian Estate which belongs to Sempronius, one of his two masters, he also acquires it for him alone.

Ulpianus, On Sabinus, Book XLVIII. Likewise, if the slave of two masters, Titius and Mævius, stipulates for a slave of Titius, he acquires him for the one alone to whom he does not belong. If, however, he stipulates for Stichus as follows, “Do you promise to deliver him to Mævius and Titius?” he acquires him entirely for Mævius, for what he cannot acquire for one of his masters, belongs entirely to the other who is interested in the obligation. 1If, when a slave has two masters, and stipulates for “one or the other” of them; the question arises whether the stipulation is valid. Cassius says that it is void, and Julianus adopts his opinion, which is our practice.

Ulpianus, On Sabinus, Book XLVIII. If he stipulates for “himself,” or for “one or the other of his masters,” in this instance, the statement of Julianus that the stipulation is void, must be accepted. But is it the addition which is void, or is the entire stipulation of no force or effect? I think that the addition alone is void, for when he utters the words, “for me,” he acquires a right of action under the stipulation for all his masters; but can payment be made to others, for instance, to a stranger? I think that payment can be made to them, just as when I stipulate for myself, or for Titius. Therefore, when a stipulation is made for “one or the other of his masters,” why is it not valid, or why will not payment be valid? The reason for this is that we cannot ascertain the person to whom the stipulation refers, and who is entitled to payment.

Ulpianus, On Sabinus, Book XLVIII. Where a slave stipulates for his master, or a stranger, both parts of the contract exist, the stipulation for the benefit of the master, and the payment with reference to the stranger; but, in this instance, the equality annuls both the stipulation and the payment.

The Same, On Sabinus, Book XLVIII. All matters are susceptible of novation, for every contract, whether verbal or otherwise, can be substituted in this manner, and pass from any kind of an obligation whatsoever into an oral one, provided we know that this is done in such a way that the obligation is changed in this way. If, however, this is not the case, there will be two obligations.

The Same, On Sabinus, Book XLVIII. The question arises whether a release which is of no effect can include a valid agreement. It includes an agreement, unless the intention is otherwise. Someone may say, “Can it not then be a consent?” Why can it not be? Suppose that he who makes the release, being well aware that it will be of no effect, grants it; who would entertain any doubt that there was no agreement, since he did not have the consent required to render one valid? 1As a slave owned in common can stipulate for one of his masters, he can also receive a release for him, and by so doing, he entirely discharged him from liability. Octavenus is of the same opinion. 2A slave owned in common can receive a release from one of his masters for the discharge of the other; and this opinion is held by Labeo. Finally, in the Book of Probabilities, he says that if the slave has stipulated with his first master for the benefit of his second, who is his partner, he can demand a release from the second, and by means of it, release his first master, whom he himself had bound by an obligation. Hence it happens that an obligation is contracted and annulled by one and the same slave. 3Only a verbal contract can be dissolved by a release, for it destroys the oral obligation, as it, itself, is verbally made; for what has not been contracted by words cannot be annulled by them. 4A son under paternal control does not bind his father civilly by promising, but he binds himself. Hence a son under paternal control can ask for a release in order to be discharged from liability, because he himself is bound; but the father, by making the interrogatories with reference to the release, does not produce any legal effect, for the reason that not he himself, but his son, is bound. The same rule applies to the case of slaves; for a slave can be discharged by a release, and even prætorian obligations are extinguished if they are against the master, because this is our practice, and a release is part of the Law of Nations. Therefore, I think that the release can be expressed in the Greek language, provided the same formula is used as in Latin, that is, “Do you acknowledge the receipt of so many denarii?” “I do.”

The Same, On Sabinus, Book XLVIII. Nothing is so natural as that an obligation should be abrogated in the same way in which it was contracted; therefore a verbal obligation is abrogated by words, and one based upon the mere consent of the parties is annulled by the dissent of both.