Venuleius, Stipulations, Book I. The act of the stipulator and the promisor should be continuous, in such a way, however, that any short interval may be permitted to intervene, and the stipulator may be answered with very little delay. If, however, after the interrogatory has been put, something else should be done, the stipulation will be void; even though the promisor answered upon the same day. 1If I stipulate for a slave, and I have one slave in my mind, and you have another, the transaction will be void; for a stipulation is perfected by the consent of both parties. 2When I stipulate as follows, “Do you promise to pay at Ephesus?” a certain time is implied. The question arises, what time should be understood? The better opinion is to refer the entire matter to a court, that is to say to an arbiter, who will estimate how much time the diligent head of a household would require to be able to accomplish what he had promised to do; so that where anyone agreed to pay at Ephesus, he would not be compelled to travel at great speed day and night, and continue his journey regardless of every kind of weather; nor should he travel so leisurely as to appear worthy of blame; but the season, as well as the age, sex, and condition of health of the promisor, should be taken into account, in order that he may act so as to arrive promptly, that is to say, within the time that most men of his rank would ordinarily consume in making the journey. This having elapsed, even if he remained at Rome, he would not be able to pay the money at Ephesus; still he could properly be sued, either because it was his own fault that he did not make payment at Ephesus, or for the reason that he could pay it there by another, or indeed could pay it anywhere. For anything which is due at a certain time can be paid before that time, although it cannot be demanded. If, however, having used the post, or having had an unusually favorable sea voyage, he should arrive at Ephesus sooner than anyone else ordinarily could have done, he will immediately become liable, because when anything is determined by time, or by the performance of an act, there is no longer ground for conjecture. 3Again, where anyone promises to build a house, there is no need of searching for workmen everywhere, and hastening to procure the largest number possible; nor, on the other hand, should the promisor be satisfied with only one or two, but a moderate number should be obtained in accordance with the conduct of a diligent builder, the time and place also being taken into consideration. Likewise, if the work is not begun, that only will be estimated which could have been completed during the interval, and if, after the time has passed which would have been required to finish the house, it is afterwards constructed, the contractor will be released from liability, just as a person will be released who promises to give himself up, if he does so at any time afterwards. 4Ad Dig. 45,1,137,4ROHGE, Bd. 17 (1875), Nr. 83, S. 366: Liberation des Beschädigten von den übernommenen Verpflichtungen. Schadensersatz.It should be considered whether someone who has promised to pay a hundred aurei becomes liable immediately, or whether the obligation remains in abeyance until he can collect the money. But what if he has no money at home, and cannot find his creditor? These matters, however, differ from natural obstacles, and involve the ability to pay. This ability, however, is represented by the ease or difficulty of the person, and does not refer to what is promised; otherwise, if anyone should agree to deliver Stichus, we ascertain where Stichus is; or if it makes much difference when delivery is to be made at Ephesus, or where the person, being at Rome, promises to deliver something which is at Ephesus; for this also has reference to the ability to give, because there is something in common in the payment of the money, and the delivery of the slave, and that is, that the promisor cannot immediately do either. And, generally speaking, the cause of the difficulty has reference to the inconvenience of the promisor, and not to interference by the stipulator; lest it might be alleged that he who has promised to give a slave belonging to another cannot do so because his master is unwilling to sell him. 5If I stipulate with someone who cannot do what is possible for another to accomplish, Sabinus says that the obligation is legally incurred. 6Ad Dig. 45,1,137,6ROHGE, Bd. 15 (1875), Nr. 7, S. 18: Verweisung des Gläubigers seitens eines Solidarschuldners an den andern unter Sicherstellung des Gläubigers. Keine Einrede daraus für den andern Schuldner?When anyone stipulates under the following condition: “If Titius should sell a sacred or religious place, or a market, or a temple,” or anything of this kind, which has been perpetually set apart for the use of the public, and the condition cannot, under any circumstances, legally be complied with, or if the promisor cannot do what is agreed upon, the stipulation will be of no force or effect, just as if a condition which was impossible by nature had been inserted into it. Nor does it make any difference if the law can be changed, and what is now impossible may become possible hereafter, for the stipulation should be interpreted, not according to the law of the future, but according to that of the present time. 7When we stipulate for something to be done, Labeo says that it is customary, and more advisable, for a penal clause to be added, as follows: “If this is not done in this way.” But when we stipulate against something being done, we provide as follows, “If anything contrary to this should be done.” And when we stipulate conjointly, that some things shall be done, and others shall not, the following provision should be inserted, namely, “If you do not do this, or if you do anything contrary to this.” 8Ad Dig. 45,1,137,8ROHGE, 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.Moreover, it should be remembered that what we stipulate shall be given cannot be acquired by only one of our heirs, but must be acquired by all of them. But when we stipulate that something shall be done, only one of them can legally be included.

Venuleius, Stipulations, Book I. If a slave owned in common stipulates as follows, “Do you promise to pay on the Kalends of January ten aurei to either Titius or Mævius, whichever one of them may be living at the time?” Julianus says that the agreement is void, because a stipulation cannot remain in suspense, and it does not appear by which of the two persons the money will be acquired.

Venuleius, Stipulations, Book I. In prætorian stipulations, if the language is ambiguous, it is the duty of the Prætor to interpret it, for its intention should be determined.

Venuleius, Stipulations, Book II. Julianus states that the creditor of a son under paternal control cannot receive a surety after the death of the latter, because no civil or natural obligation with which the surety is connected survives; but it is evident that a surety can be properly received from the father on account of the action on the peculium which may be brought against him.

Venuleius, Stipulations, Book II. If, of two persons who are about to bind themselves by a promise, one answers to-day, and the other on the following day, they will not be jointly liable, and he who has answered on the next day is not even regarded as liable at all—as the stipulator, or the promisor turned aside for the transaction of other business—even though he made his reply after the said transaction had been concluded. 1If I stipulate for ten aurei with Titius and a ward without the authority of his guardian, or with a slave, and I have accepted them as two jointly liable promisors, Julianus says that Titius alone will be bound; although if a slave should promise, the same rule must be observed in an action for his peculium, as if he had been free.

The Same, Stipulations, Book III. If a promisor should become the heir of the person jointly liable with him, it must be said that he is bound by two obligations; for where there is some difference between the obligations, as in the case of a surety and the principal debtor, it is established that one obligation is annulled by the other. When, however, the obligations are of the same nature, it cannot be determined why one of them should be disposed of rather than the other. Hence, if one joint-stipulator should become the heir of the other, he will be entitled to two distinct obligations.

Venuleius, Stipulations, Book III. If I stipulate for something to be given me, and I afterwards stipulate for the same thing with the same person under a condition, with the intention of making a novation, the property must remain in existence in order for there to be ground for the novation, unless the promisor was required to give it. Therefore, if you are obliged to deliver me a slave, and you are in default in doing so, you will be liable even if the slave should die, and if, before he dies, you are already in default, and I stipulate with you for the same slave under a condition, and the slave afterwards dies, and then the condition is fulfilled, as you are already liable to me under the stipulation, novation will alscr take place. 1Ad Dig. 46,2,31,1ROHGE, Bd. 4 (1872), S. 217: Liberation eines Schuldners ohne dessen Wissen durch Zahlung bez. Angabe an Zahlungsstatt, Novation eines Dritten.ROHGE, Bd. 16 (1875), Nr. 82, S. 328: Ersatzanspruch aus der Tilgung bezw. Uebernahme der Schuld eines Andern.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 295, Note 5; Bd. II, § 354, Note 15.Where there are two joint-stipulators, the question arises whether one of them has the right to make a novation, and what right each acquires for himself. Generally speaking, it is established that payment may properly be made to one, and that if one institutes proceedings he brings the entire matter into court, just as where one is released, the obligation of both is extinguished. From this it may be gathered that each of them acquires for himself, just as if he alone had stipulated; except that each of them, by the act of him with whom the stipulation was jointly made, can lose his debtor. According to this, if one of the joint-stipulators enters into another agreement with a third party, he can, by novation, release him from liability to the other joint-stipulator, if such was his express intention; and there is all the more reason for this, as we think that the stipulation resembles payment. Otherwise, what shall we say if one of them delegates the common debtor to his creditor, and the latter stipulates with him; or a woman orders a tract of land to be promised to her husband by way of dowry; or, if she was about to marry him, she should promise him the land as dowry? The debtor would be released, so far as both parties are concerned.

The Same, Stipulations, Book IV. When anyone stipulates for something to be given to him on certain market-days, Sabinus says that he can demand it after the first day. Proculus, however, and other authorities of the rival school, think that it can be demanded as long as the smallest part of the market day specified remains. I agree with Proculus. 1When I stipulate absolutely, as follows, “Do you promise to give this, or that?” you can change your mind with reference to what you have to give, as often as you please; because there is a difference between an intention which is expressed, and one which is implied.

Venuleius, Stipulations, Book VI. Where two or more guardians are administering a guardianship, the stipulation of the surety of each one will render him liable for the entire amount. But if the guardianship is divided among them by districts, which is generally done, and one of them attends to the business in the city, and the other to that outside of it, then the stipulation will bind, or will not bind either surety, according to the liability of either principal; for although they are all guardians, and are administering the guardianship, still, if either of them is sued with reference to property which is outside of his district, or is brought into court, the stipulation will not bind him unless the administration of the guardianship has been entirely entrusted to him. Where the administration of the entire trust has not been committed to a guardian, the effect is the same as if it had not been given to him with reference to the property which is in question.

The Same, Stipulations, Book VI. When we attempt to obtain anything by virtue of a double stipulation, the heirs of the vendor should all be sued for the entire amount, and all of them should defend the case; and if one of them fails to do so, it will be of no advantage to the others to make a defence, because the sale must be defended in its entirety, as its nature is indivisible. Where, however, one of them is in default, all are considered to be so; and therefore all of them will be liable, and each one will be required to pay in proportion to his share of the estate.

Venuleius, Stipulations, Book VI. When, through fraud, a case has not been completely defended, the stipulation will become operative under the clause relating to the payment of the judgment; for a suit is not considered to be properly defended in accordance with the opinion of a good citizen where a defence is not made for the entire amount of the property involved,

Venuleius, Stipulations, Book VII. If an heir, in an instance where a co-heir was added under a condition, or is in the hands of the enemy, should assert that he himself is the heir, and having brought an action should gain it, and afterwards the condition upon which the inheritance of the other heir depended is fulfilled, or the latter returns by postliminium; ought the other heir to share with him the advantages of his victory? He is undoubtedly entitled to an action to enforce judgment for the entire amount. In this case the co-heir should be granted his choice, that is to say, he must either be given a share of the estate or he must have the power to institute proceedings, for he is one who became an heir, or returned to the city, after his co-heir had been successful. The same rule must be observed where a posthumous child is born. These parties are not to blame on account of their silence, since they only obtained a right to the estate after their co-heir had won his case.

Venuleius, Stipulations, Book VII. The term “chains” applies to both private or public restraint of liberty; “custody,” however, only has reference to public imprisonment.

The Same, Stipulations, Book IX. The last clause of the stipulation for the payment of a judgment, “That there is no fraud, and will be none,” indicates a permanent fact for the future. Therefore, if he who was guilty of fraud should die, his heir will remain liable; for the words, “will be none,” have great latitude, and refer to all coming time, and if fraud should be committed at any time, for the reason that it is true that there was fraud, this clause will become operative. 1And where the following is added, “If any fraud should be committed in this matter, do you promise to pay the entire value of the property?” the promisor will be liable to the penalty, even on account of fraud committed by a stranger. 2The clause relating to fraud, however, as is the case with other stipulations in which the time is not expressly mentioned, refers to the beginning of the stipulation.

Venuleius, Stipulations, Book XI. If I stipulate for the purpose of making a novation on account of a legacy which was bequeathed to me under a condition, and I release my right to it before the condition is fulfilled, Nerva, the son, says that even if the condition should be fulfilled, I will not be entitled to an action under the will, because a novation took place, nor can I bring one under the stipulation, as the right to do so has been extinguished by the release.

Venuleius, Stipulations, Book XII. If the usufructuary should obtain the property, the usufruct ceases to belong to him on account of the merger of the same; but if suit is brought against him on the stipulation, it must be held either that he has not proceeded in accordance with the strict principles of law, if the doctrine governing the conduct of a good citizen is considered applicable; or that the party must make use of an exception based on what has taken place.

Venuleius, Stipulations, Book XII. Where a slave forming part of an estate stipulates and receives sureties, and after the estate has been entered upon, a doubt arises whether the time begins to run from the date when the stipulation was made, or from the time when the estate was accepted, just as where a slave whose master is in the hands of the enemy has received sureties, Cassius thinks that the time should be computed from the date when proceedings can be instituted against the parties; that is to say, after the estate has been entered upon, or the master returns from captivity under the right of postliminium.

Venuleius, Stipulations, Book XII. No one can be considered dishonest who does not know how much he ought to pay.

Venuleius, Stipulations, Book XIII. If a man should become the heir of his wife, and incur expenses for her funeral, he will not be considered to have expended the entire amount as her heir, but he should contribute in proportion to the extent that he is pecuniarily benefited, after having deducted what was due on account of the dowry.

Venuleius, Stipulations, Book XV. An attorney instituted proceedings for the production of property, and his adversary was discharged because he did not have possession of it. Then, he having subsequently obtained possession of the same property, the principal brought an action against him to compel him to produce it. Sabinus says that the sureties will not be liable, as this is a different matter; for even if the principal should bring the action in the first place, and, after his adversary had been discharged because he did not have possession of the property, he should bring another, he would not be barred by an exception on the ground of res judicata. 1If an agent has collected money from a debtor, and given him security that his principal will ratify his act, and the latter afterwards brings suit for the same sum of money, and loses the case, the stipulation will become operative; and if the agent pays the same money to his principal without an order of court, it can be recovered by a personal action. Where, however, the debtor brings suit under the stipulation, it may be said that if the principal undertakes the defence of his agent he cannot improperly make use of an exception on the ground of bad faith against the debtor, because the obligation remains a natural one. 2If anyone should permit his status to be disputed by an agent, he should take security from him that he will not continually be molested on this account, and if the principal, or his representatives, does not ratify his act, namely, that the agent attempted to reduce the party in question to slavery; or if the latter obtained a judgment against the agent in favor of his freedom, the entire value of the property must be paid to him when his right to liberty has been established, that is to say, to the extent of his interest in not having his status placed in jeopardy, as well as for the expenses incurred by the litigation. Labeo, however, thinks that a definite sum should be included, because the estimation of freedom is capable of indefinite extent; the stipulation, however, is held to become operative from the very moment when the principal refused to ratify the act of the agent. Still, an action cannot be brought under the stipulation before a judgment has been rendered with reference to the freedom of the alleged slave, because if it should be decided that he was a slave, the stipulation becomes void, and if any action can be brought he is understood to have acquired it for his master.

Venuleius, Stipulations, Book XVI. With reference to rural servitudes, where they tacitly follow the land, and are recovered by a third party, Quintus Mucius and Sabinus hold that the vendor cannot be held liable for eviction, for no one is liable on this ground in cases where there is a tacit accession to property; unless the land is conveyed as absolutely and entirely unincumbered, for then it should be warranted to be free from all servitudes. If, however, the purchaser demands a right of way or a driveway, the vendor cannot be held liable, unless he expressly stated that a right of way of some description was accessory to the property, for then he who made the statement will be liable. The opinion of Quintus Mucius, who stated that a party who conveys land as absolutely and entirely unincumbered warrants it to be free from every servitude, is correct; for other servitudes are not due unless it has been expressly stated by the vendor that they are accessories.

The Same, Stipulations, Book XVII. If you sell me property belonging to another, and I abandon the same, it is settled that my power to act, that is to say, my right to bring suit on account of eviction, is lost.

Venuleius, Stipulations, Book XVII. The law forbids property which has been possessed or taken by violence to be acquired by usucaption, before it again comes under the control of the owner, or his heir.