Ulpianus, On Sabinus, Book XLIX. The vendor of a right to an estate is not compelled to give security against recovery by a better title, for the implied understanding between the purchaser and the vendor is that the former should have nothing more or less than the heir would be entitled to. It is clear that the vendor can be compelled to give security for what actually conies into his hands. 1Where a right of succession is sold, should it be considered whether an account is to be taken of the amount of the estate at the time of the death, or when the estate was entered upon, or of the assets when the sale took place? The better opinion is that the intention of the parties should be carried into effect, and it is generally held that the intention was that whatever formed part of the estate at the time when the sale was concluded is considered to be sold. 2It may also be asked whether, when the person who sold the estate of the testator was himself substituted for a minor heir, what came into the hands of him who sold the estate from the inheritance of the minor heir would afford ground for an action on purchase. The better opinion is that it would not be included, because the estate of a minor is different from that of his father, for, although there is but one will, there are, nevertheless, two estates. It is evident that if this was the intention, it must be held that the estate of the minor is also included in the sale; above all, if the right of inheritance was sold while the succession of the minor was still intact. 3A question arises as to the construction of this clause, namely: “Whatever has come into the hands of the heir who sells his right of inheritance.” It is my opinion that it applies to a case where the vendor has not yet obtained any of the property belonging to the estate, and that he has only acquired the privilege of assigning his rights of action to the purchaser, for where he has obtained possession of the property of the estate, or has collected debts due to the same, it is held that the property has come into his hands in a broader sense. Where, however, he has obtained the price of property sold before the sale of his right of inheritance, it is clear that the price of said property has come into his hands. This should be retained by him, since it seems to have actually come into his possession, and not at first sight would merely appear to have done so; and therefore what he has paid by way of legacies is not considered to have come into his hands. Moreover, where there is any indebtedness, or other burden of any kind attaching to the estate, it is very properly said not to have come into his hands. The demands of equity, however, require the heir to pay to the purchaser the value of any property belonging to the estate which he gave away before the sale. 4Again, not only what has come into the hands of the vendor of the right to a succession, but also whatever has come into the hands of his heir from the estate must be delivered to the purchaser; and not only what he has already obtained, but also whatever may, at any time hereafter, come into his possession must be given up. 5Ad Dig. 18,4,2,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 331, Note 8.Moreover, where any act has been committed through the fraudulent intent of the parties to prevent property from coming into the hands of the heir, this also must be made good to the purchaser. He is held to have been guilty of malicious intent to prevent property from coming into the hands of the heir who alienates any of the assets of the estate; or releases a debtor from liability by means of a receipt; or fraudulently prevents possession thereof from being acquired, where this can be done. A party is also liable not only where he has committed an act with fraudulent intent, but also where he has been guilty of gross negligence. Anything, however, that has been lost or depreciated without fraudulent intent on the part of the vendor, will not have to be made good. 6The question has been asked whether the vendor of the right of succession to an estate should be accountable to the purchaser for a debt due from his son who was under his control, or from his slave, to the party, the right to whose estate he sold? It is held that he should account to him only for what was ascertained to have belonged to the peculium of his son, or was used for the benefit of his own property. 7The question is often asked whether, where the vendor of the right to an estate has obtained any profit by reason of the same, he must make this good to the purchaser? This point is discussed by Julianus in the Sixth Book of the Digest. He says that the heir can retain whatever he may have collected that was not due, and that he will not be held accountable where he has paid what was not due; for the rule that the heir is not required to make good to the purchaser a debt which he collected that was not due must be observed, and that he cannot collect from him anything which he paid when it was not owing. If, however, the heir should make payment after judgment has been rendered against him, it will be sufficient for him that he suffered an adverse decision without any fraud on his part, even though the creditor was not the party in whose favor the decision was rendered. I concur in this opinion. 8It must be said that the heir should assign to the purchaser not only any rights of action belonging to the estate, but also such obligations as the heir himself has contracted for his own benefit, and which he derived from the estate; therefore, if the heir has accepted a surety from a debtor to the estate, he should assign to the purchaser any claim which he may have against said surety. Where, however, he has renewed the obligation, or instituted judicial proceedings with reference to it, he must assign the right of action which be has obtained. 9As all the profits of the succession to an estate are acquired by the purchaser, so also he must bear any loss growing out of the same. 10Hence, if an heir should sell the right of succession to an estate, and, in consequence, should have judgment rendered against him, he will not be entitled to an action against the purchaser; as the decision was rendered against him, not because he was the heir, but for the reason that he had made the sale. Let us see, however, if he pays to the purchaser of the succession the price received for the property sold, whether there will be ground for an action on sale. I think that there will be. 11Where the vendor himself gave something on behalf of the estate, or his agent, or anyone else who was transacting his business did so, there will be ground for an action on sale; provided anything was paid out of the property of the vendor of the right of succession. If, however, the vendor was at no expense on his own account, it must be held, in consequence, that an action in his favor will not lie. 12It is stated by Julianus that, if the vendor of a right of succession reserves a slave without his peculium, and an action De peculio is brought against him on account of said peculium, or he is sued for money expended for the benefit of the property of the deceased; that can only be recovered which he would have paid on account of said peculium and would have passed to the purchaser, or the amount which had actually been expended on the property of the deceased; for, in these instances, he has paid the debts of the purchaser, and. in all others, the vendor will have judgment rendered against him in his own name. 13What then, if the vendor of the right of succession to an estate should reserve a slave together with his peculium and an action was brought against him on the peculium, would he be compelled to pay? Marcellus holds in the Sixth Book of the Digest, that this cannot be recovered from him, provided the intention of the parties was that the vendor should be entitled to what remained of the peculium, after Payment of the claim. If, however, the intention was different, he very properly says that the purchaser can bring an action against him for its recovery. Where nothing was expressly agreed upon between the Parties, but mention was only made of the pecidium, it is established that an action on sale will not lie. 14Where the vendor of the right of succession to an estate reserves a house, on account of which security has been given for the prevention of threatened injury, the intention of the parties is a matter of importance; for if the reservation was made in such a way that he must sustain the burden of the loss, as well as that of the security against injury, nothing can be recovered from the purchaser; but if the intention was that the purchaser should pay this debt, the burden of the stipulation will rest upon him. If the intention cannot be ascertained, the probability is that it was understood that the responsibility for any injury which occurred before the sale was made will rest upon the purchaser, but that what may occur at any other time must be assumed by the heir. 15If Titius should sell to Seius his right of succession to the estate of Mævius, and, having afterwards been appointed the heir of Seius, sells his right of succession to Attius, can an action be brought against Attius on the ground of the former sale? Julianus says that whatever the vendor of the right of succession can recover from any foreign heir, he can recover from the purchaser of the right of succession. It is clear that if another heir of Seius should appear, whatever the vendor has paid on account of the estate of Mævius he can recover from the said heir in an action on sale; for if I have stipulated with Seius for double the amount of the value of a slave, and I become his heir, and sell the estate to Titius, and the slave is acquired by someone else through a better title, I will have to make good the property to Titius. 16Where the vendor of the right of succession to an estate has paid anything by way of public taxes, it must consequently be said that the purchaser will be required to make this good to him, for these are burdens constituting a charge on the estate. And if the heir should happen to pay anything on account of duties, the same rule will apply. 17If, after the funeral has taken place, the heir should sell his rights to the estate, can he recover the funeral expenses from the purchaser? Labeo says that the purchaser must refund the funeral expenses, because they, also, are part of the liability of the estate. Javolenus thinks that this opinion is correct, and I agree with him. 18Where anyone becomes the heir to a debtor, he ceases to be a creditor, through confusion. If, however, he should sell his right of succession to the estate, it is held to be perfectly just that the purchaser should occupy the place of the heir, and therefore be liable to the vendor either for what the testator owed at the time of his death, (although his indebtedness ceased when the vendor entered upon the estate), or for what was owing within a certain time, or under some condition, after the condition had been complied with; provided, nevertheless, that an action will lie against the heir of the debtor, for an action should not be brought against a purchaser on any ground on which it could be brought against an heir. 19Where an appointed heir loses any servitudes, through entrance upon an estate, he can bring an action on sale against the purchaser to compel him to restore said servitudes. 20If, however, the vendor has not yet paid anything, but has bound himself in any way whatsoever on account of the estate, he can, nevertheless, proceed against the purchaser.

Ulpianus, On Sabinus, Book XLIX. The same rule applies to the stipulation, “Do you promise that myself and my heir can have so-and-so?” 1The reason for this difference is, that when one of the heirs is hindered, the co-heir, who has no interest in the matter, cannot bring suit under the stipulation, unless a penalty has been imposed which causes the stipulation to be violated by all; because, in this instance, we do not inquire who is interested. But when one of the heirs, interferes, all of them are liable, for it is to the interest of him who is prevented not to be hindered by anyone.

Ulpianus, On Sabinus, Book XLIX. The following stipulation, “Do you promise that I can have such-and-such a thing?” contains the provision that I shall be permitted to have it, and that nothing shall be done by anybody to prevent us from having it. The effect of this is that the other contracting party is considered to agree that you shall be permitted by all persons in the future to have what you have been promised. Therefore he appears to have guaranteed the acts of others. No one, however, will be liable if he promises that others will do something, and this is our practice. But he binds himself not to do anything to prevent the other party from having the property, and he also binds himself that neither his heir, nor any of his other successors, will do anything to prevent the stipulator from having what he promised him. 1If, however, he promises that no interference will take place through the agency of anyone except his heir, it must be said that his promise of the act of another is void. 2If he should desire to guarantee the act of another, he can promise a penalty, or the value of the property. But to what extent will he be considered to guarantee possession of the property? This has reference to cases where no one raises a controversy, that is to say, neither the promisor himself, nor his heirs, nor their successors. 3If anyone should raise a question, not with regard to the ownership of the property, but merely to its possession, or to the usufruct or the use of the same, or to any right attaching to what has been sold, it is clear that the stipulation becomes operative, for he has not the unrestricted right to anything where what he has is diminished in any way. 4The question arose whether the promise to hold property only applies to what belongs to the person himself, or whether it also applies to property belonging to others. The better opinion is that a promise of this kind can be made with reference to the property of others, if it afterwards should come into the hands of the promisor. Hence, if it still continues to belong to someone else, it must be said that the stipulation does not become operative, unless a penalty was added, although nothing may have been done by the person himself or his successor. 5Just as he who makes the promise and his successors are liable, so, also, the stipulation becomes operative for the benefit of the stipulator himself and his successor, if he should not be allowed to have the property. If, however, another is not allowed to have it, it is certain that the stipulation does not become operative; and it makes no difference whether I stipulate “that he shall be permitted to have it,” or “that I shall be permitted to have it.” 6Those who are under the control of others can stipulate with the latter that they shall be permitted to hold the property, for the same reason that they can stipulate for other things for their benefit. If, however, a slave should stipulate that he himself shall be entitled to have the property, the question arises whether he must be considered to have entered into a legal stipulation? Julianus, in the Fifty-second Book of the Digest, says if a slave stipulates that he shall be permitted to have certain property, or promises that nothing will be done by him to prevent the stipulator from having it, the stipulation does not become operative, although he can be deprived of the property, and he himself can take it away; for in a stipulation of this kind not a fact, but a right, is involved. Therefore, if he stipulates that nothing shall be done by the promisor to prevent him from making use of a right of way, Julianus says that not the right of stipulation, but a fact, is involved. It seems to me, however, that although the stipulation that he should be permitted to have the property includes the statement of a right, still, in the case of a slave and a son under paternal control, it should be understood to apply to the retention, and not to the deprivation of possession, and the stipulation will be valid. 7This stipulation also, “Do you promise that I shall have possession?” is valid. Let us see whether a slave can properly make use of such a stipulation for his personal advantage. But although a slave cannot hold possession under the Civil Law, still this has reference to natural possession, and therefore there can be no doubt that the slave has made a valid stipulation. 8It is definitely settled that if a slave has stipulated that he shall be permitted to hold property, the stipulation is valid. For although slaves cannot hold possession civilly, still there is no doubt that they can hold it. 9The term “to have” is susceptible of two different meanings, for we say that a person who is the owner of property has it, and that he who is not the owner holds it. Finally, we are accustomed to say that we “have” property which has been deposited with us. 10If anyone should stipulate that he shall be permitted to enjoy anything, this agreement does not affect the heir. 11And if he did not add “For himself,” I do not believe that this stipulation for the usufruct will pass to the heir. This is our practice. 12Ad Dig. 45,1,38,12ROHGE, Bd. 12 (1874), Nr. 106, S. 360: Verträge zu Gunsten eines Contrahenten und eines weiteren noch unbestimmten Personenkreises. Aufführungsrecht für den Theaterdirector und dessen Nachfolger.If anyone stipulates that he and his heir shall be permitted to enjoy some right, let us see whether the heir can bring an action under the stipulation. I think that he can do so, although usufructs are different; for if the stipulation was with reference to a right of way to be enjoyed by himself and his heir, we should adopt the same opinion. 13If anyone desires to provide against the fraud of a promisor and his heir, it will be sufficient for him to stipulate that there is no fraud, and that there will not be any. If, however, he desires to provide against the fraud of everyone else, it will be necessary for him to add: “If any fraud exists in this transaction, or should arise hereafter, do you promise to pay a sum equal to the value of the property?” 14Anyone can add to his own person that of his heir. 15The person of an adoptive father can also be added. 16A distinction exists between a day which is uncertain and one that is certain; and therefore it is evident that anything which is promised at a certain time may be paid immediately, for all the intermediate time is left to the promisor for payment. And where anyone promises that, “If anything should be done, or when anything shall be done,” and he does not make payment when the thing is done, he will not be considered to have complied with his promise. 17Ad Dig. 45,1,38,17ROHGE, Bd. 16 (1875), Nr. 101, S. 399: Zweck der Konventionalstrafe. Verstärkungsmittel der Vertragserfüllung.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 250, Note 3.No one can stipulate for another except a slave for his master, and a son for his father, as obligations of this description have been contrived in order that everyone may acquire for himself anything in which he may be interested, but I have no interest in what is given to another. It is clear that if I wish to do this, a penalty should be included in the stipulation, in order that, if what has been agreed upon should not be done, the stipulation will become operative, even in favor of a person who has no interest in the transaction. For when anyone stipulates for a penalty, his interest is not taken into account, but only the quantity and difference of the stipulation, whatever that may be. 18Ad Dig. 45,1,38,18ROHGE, Bd. 7 (1873), S. 1: Auslegung von Verträgen zu Gunsten des Verpflichteten.When the intention of a stipulation is examined, the language should be interpreted against the stipulator. 19When anyone says, “Ten to me and ten to Titius,” he is understood to mean the same ten, and not two tens. 20If I stipulate for another, when I am interested in doing so, let us see whether the stipulation becomes operative. Marcellus says that, in a case of this kind, the stipulation is valid. Where anyone undertakes the administration of the guardianship of a ward, and gives it up to his fellow-guardian, stipulating that the property of the ward shall be secured, Marcellus says, that the stipulation can be maintained to be valid, for it is to the interest of the stipulator that what he agreed to shall be done, as he would be liable to the ward if this were not the case. 21If anyone promises to build or lease a house, and then stipulates with another that a house shall be built for the stipulator; or if anyone promises that Mævius will convey a tract of land to Titius, and if he does not do so, that he will pay a penalty; or if he stipulates with Mævius to transfer a tract of land to Titius, just as if anyone should lease something to be done which he himself had undertaken; it is certain that he will be entitled to an equitable action based on the lease. 22Hence, if anyone should stipulate when it is to his interest that something should be given, he is in such a position that the stipulation will be valid. 23Therefore, where I stipulate that something shall be given to my agent, and, likewise, if I stipulate that it shall be given to my creditors, the stipulation will be valid, because it is to my interest that no penalty should attach, nor any land be sold which has been hypothecated. 24If anyone stipulates as follows, “Do you promise to produce him in court?” there is no reason why this obligation should not be valid. 25We can stipulate for the building of a sacred or religious edifice, otherwise we cannot bring an action under a lease.

The Same, On Sabinus, Book XLIX. The term “money” not only includes coin, but all kinds of property, that is to say, everything which is corporeal; for there is no one who has any doubt that corporeal property is also included in the word “money.” 1Inheritance is a legal term which has reference to both the increase and the diminution of an estate, as an inheritance is greatly increased by the profits. 2The term “action” is both special and general; for the same word is used whether a claim is made against the person or against the property. We are, however, for the most part, accustomed to call the former personal and the latter real. I think that extraordinary proceedings are included under the term “pursuit,” as for instance, those arising from trusts, and any others which do not come within the scope of ordinary law. 3The expression, “He owes,” is understood to include every action whatsoever which can be brought against anyone; whether it is civil or prætorian, or involves the execution of a trust.