The Institutes of Justinian

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TITTES LA IV. 333mys him is misi ea and the lalter can, a plainti' bring a condictio against hi sor it re very, after in analom os the action, se formula an scit he prove that he oughtto converi exactinas is in defendantina receive a loansrom him. Consequently a pupit ho by mistave is piadsomething Which is no reatly owω him Without his maestan's

authori , illis no more bound is a condictio sor in re- cover os money noti e than by one or money received as

Bunded on contraci foris ment made in orde to dischai a debi is intende to extinguis motrio create, an obligation. Sorio a person to Whom a thiniis lent sor se is lai unde a real obligation, an is liable to the actioni a lom sor se. The differoces ,remthis case and acloan sor consumption is considerable sor here the intention is nodito mali the objectient the proper is the bornower, ho accordinginis boundio restore the fame identical ining Again, is the receiver os aloando consumption loses What he has received by some accident, such as fire, the fallis a bullding, shipwrecli, o the attachos thi es orinemies, he stili remaini und but the borrowersor se though responsibi sor the greates care in keeping.hat is lentinim an it is no enouo that he has shown asmuch care a he usuali besto sis his own assaim, is onlysommone eis could have been more diligent in the charge sit has notrio ans e socios occasione is firmor accident

Myon his controi provide it di no occur through any sauit os his own Othemise os coume, it is different sor instance, is mu choos io tali Withoo on a ourn in ining Whic has been lent to ou sor se, an lose it by eingattacheclinenemie or inleves, o hyra inip rech, it is Myondquestio that ou Will e li terior iis restoration. A thingis no properly sal to e lent sor se is any recompense is receive or agree upon o the service sor here this is the case the se of the ining is hel to e tred, and thecontract is of a disserent ind, sor a lom sor se uotalWaycto e gratuitous. Again the obligation incurre is a person it, hom a thiniis deposite sor custod is reat,andae an be sue by the actio os deposit herio Mineresponsible so the restorationis the identices thing deposited,

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commissionis his pari sor sor inrelemness, that icto say, inattentio an negligence, hecis notest te rius a personstom homo hin is stolen in the charmis hic he has

en mos caretras, cannot be calle is account, cause, is a man entrusis properint in custody os a caretes selendi

he has no one o blam but himsel sor his antis caution. Finalty the creditor ho akes a thin in ledge is undera rea obligation, an is bound to restore the hin itieis by the actio os ledge. A ledge, however, is sor thebenefit os both partim of the deblor causerit enabies Umto borrow more easily, and of the creditor, hecauseae has the iter securit sor repaymeni; and accomingly, it is a seived rule that the ledge cannot he hel responsibi sor more

An obligation is contracte is questio an answer statis to say, is a formis Woms, when e stipulate that propertyshallae convene torus, o some ther actis performe inour lavour Such verbal contracta Mound two different actions, namel condiction, hen in stipulation is certain, and the actioni stipulation, When it is uncertain an the nam is derive seo supulum, a Wor in se among the ancientsto meam sim, o possibi stom stipes, the trunk of a uest

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NNES XIV V. 135 responds to the question, and thus Wo Greelis, sor instance, may contractis obligation in Latin But it was ni informe times that the solem forma referre to ere in se: sor subsequently by the enacimentis Leo' constitution, heiremployment a rendere unnecessa , an nothin Wasastemam require excepi that the parties should underetandeach other, an agre to the fame ining the word in hichsuin agreement Was expresse Ming immateriai. The te sis a stipulatio ma be absolute, o performanceama etiner e postpone to ome suture time, oris madesubjectri a condition. An absolute stipulatio ma M'κ-

instantly sue sor As an instanceis a stipulation in diem' ascit is calle where a suture danis fixe so payment, Wemantake in solio ing Do ou promis to give te aureio the fidit os arch λ' In such a stipulatio a this, an immediate ebi is creat , hut it cannot be sue upo untiline arrival of the da fixe so payment an evenis that ver da an actio cannot e brought, ecause the deblorought to have the whole oscit allowe to hi sor paymeni; sor othemise, unies the whole clay on hic payment aspromise is past, it cannot be certain that delauit has been made. Is the term os,our stipulatio rum Do ou promiserat pay me te aurei a ea socion a I live p the obligation is deeme absolute, and the liabili serpetuat, sor a debicannot M owed illis certain time only though is the promisee's hei sues sor payment, he will e successsully me by the ple os contra ingreement. A stipulation is conditionat,

When performance is made to depen on om uncertain event in the suture so that it hecomes actionable ni onsomethin Ming one or omitted sor instance, Do ou promiserio giverave aurei is Titius is made consul γ' fiowever, a man stipulates in the orm m yo promiserio give soandis cis Udo nota up to the Capitolὰ the effectris thesam ascis he had stipulate sor paymen to himself at thetime os his eath. The immediate effect os a conditionalstipulation is no a debl but meretnine expectatio that at wme time there Willi a debl and this expectation devolves

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5 mentis the condition. t is usual in stipulation to nam a placerior payment sor instance, Mo ou promiserio inve at Carthage λ' Such a stipulatio a this, though in iis terms absolute, implies a conditio that nouo time hali Mallowe to the promisor in nable him o pay the moneyat Carthage. Accoming , is a man a Rome stipulate thus, Do ou promiserio panto-dana Carthage y the stipulationis Oid, Minus the performance of the ac to e promis 6 is a physica impossibility. Condition relatin to past orpresent time either in the obligation uoi at once, o haven SuspenSive operation inatever. hus, in the stipulation Do m promiserio give so an so, is itius has Men consul, or is aevius is alivep the promiseris Oid is in condition lano satisfied while is it is, it icta in at once sor evenis hicli in themselves are certain do no suspen the inclingsorceis an obligation, howeverruncertain, ourseives may be out inem. The performance or non-performanceis an ac may be theobjectis a stipulationis les than in deliverno proper , though,here this is in case, it Wil be best to connec thenon-persormance of the ac tot performed, o the perso-ance of the ac tot omitted with a pecunia senaltyrio bepat in delauit, test thereae a doub acto the value of the acti omission, hic Wili akerit necessar so the pliantissio prove o What clamage hecis entillecl. Thus, is it he a performance which is stipulated sor, some suc penalty s uidhe adde as in the sollowing Inso an socis no done doyo PromiSerio pante aurei as a penalty λ' An is the perso ance of SOme acta, and the non-performance os othera, are armine sor in the fame stipulation, a clause of the sollowing in should e added, Ι an delauit is made, either a contrar to What is agree upon o by Wayis non- Performance do yo promiserio para penalty os te aurei 3

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H promiscissis the have ali ira aske the question forinstance, is aster Wo promisees have separaret stipularedis him heruns era, promiserio ove so an sorio eata osma' ut is he fim promise to Titius, and then, o mother'sputting the question to him, promise to tam too, here Willae tuo distinc obligations namely one belween him an each of the promisees, and thenaremo considereo Oint promisera atall. The usual formno constitute , o more joint promisorsis a sollows,- Μaevius, do ou promiserio give sive aurei pSeius, do ou promis to ove in fame sive rureir an inans e the reply separalely promise. In obligations os Ithis kin each oin promise is owe the whole sum, and the whole sum an e laime stom ac joint promisor; and et in both cases ut ne paymen is clue so that is One Oint promise receives the ebi, or necioin promisor paycit, the obligatio is hereb eκtinguishedrior ali, an allare ther Rrete e seo it Os two Oint promisors ne manabe boun absolutely, whil performance by the ther is postpone to a suture M or made to dependis a condition; but suta postponementis such condition in no way prevenis the stipulator stomat once uing the ne ho a Mundabsolutein

O STIPULATION MADE BY LAVES. Fro his master' leges capacit a lave clerives abili riobe promisee in a stipulation Thus, as an inheritance in ostmattera represent the legat serson os in deceased -Meve a flaves longin loci stipulates sor besore in inheritane is acceptes, he acquire so the inheritance, an so sorthe person who subsequently becomes heir. ill that a flave I

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acquires by a stipulationis acquires sor his master URwhether it Was to that master,or himself, or his sello flave,or noone in particula that perso ance Was to e made unde thecontraci and the fame principie applies to children in power,so sanas therno are instruments of acquisition sor their sather. 2 When however What is stipulattarior is permission to do some specificinci, that permission cannot extendiemnesthe persono the promisee sor instance, is a lave stipulates sor Permission to cros in promisor' land, he cannot himself be clenita 3 passage, though his master can. A stipulation is a lave longing to Ointi ners enures to the benefit os ali os themis proportion to the hares in hic thenown him, uni sine stipulate at the idcling, or expressi in amur, Done os them only, in hic cas that onerulone is benefited. herea ointly owne flave stipulate so the transfer os propertywhic cannot be acquire sor ne of his Wo mastere, thecontractisnures to the benefit os the otherinly sor instance, Where the stipulation is for the transfer os a thin whichalready belong to one os them.

O THE DIFFERENT INDS OF STIPULATIONS. Stipulations are either judiciat, praetorian conventiones, orcommon: by the lalter Min meant those hic are both praetorian and judiciat. Judiciat stipulations are thos whichit is simply partis the udge' duinto require so instanc

security against fraud, o so the purauit os a mnaway Slave, or in des it sors ment os his value Thos are Praetorian, whic the praetor is boun to exactisimpi in viris os his magisteria iunctions sor instance, securit against Prehende clamage, o sor paymen os legacies by an heir. Under praetoria stipulations e must include also in edirected by the aedile, sor these to are based umn jurisdic-xtion. Conventiona stipulations are those hic aris merelysrom the agreement of the parties, aparchom any directionis judge oris the praetor, and whic one ma almos Sariareos a many different hines a there are conceivable objecis is a contract. Common stipulations may be exemplifie is

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ich an agent promise that his acti stalli ratified is his principes. ΤITLE XIX.

Anything, hether moveable or immove te, which admiraos private Wnership may be made the objectis a stipulation but is a man si1pulates sor the delivernos a thing whic eithera dora notis cannot exist suc a Stichus, hocis dea butinom e thought live or an impossibi creature, like ahippocentaur, the contruci illis void. recisely the samera principi applies here a man stipulate so the delivernos atting hic is sacre o religio , hut whic he thought was subjectis humanis nership oris a thing hic is public, stat is o say, devote in perpetuit to the se and Moy-ment of theseopte at large like a sorum o theatre, or os ast man whom he thought a flave, oris a thing hic herisine able os o ning or,hich is his own already An theiaci that a thing whic is public may hecome private ProPerty, stat a se man may come a flave, that in stipulator may come cap te os owning such and such a thing, o that suchand such a thin manceas to belongrio him, wil not avail tomerely suspend theriore of the stipulation in these cases, buti is mi Domine uise Conversely, a stipulation hichoriginalty was persecti γω may be avoide by the hinninichris iis object acquiring any of the character jus speci-fied inmugh nodauit os the promisor An a stipulation, Suchas do Xo promiserio conve Lucius itius heth shalliea flave λ' an others like it, are also void stomethes ginning ;sor objecta hic by thei very nature cannot e med isma cannot either in any wayae made the objectis an obligation. Done an promise that another hali convey, Orra domo messo, as sor instance, that Titius hal ovemve aurei,

he Wil notis bound though he will sine promise is gel

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IU BOOae LV. 4 itius to mve inem. Is a man stipulares sor conveyance is, mance in lamur os, nother person horis in his paterfamilias the contractris vol&; though of courae perso ance to a thir person may be barmine sor as in the stipulation do mu promiserio give to meis to Seius pJ Where, though the obligation is create in lamur os the stipulatoronly payment a stili e la fuit made to eius, evenagainst the stipulator' Wili, the result os,hicli, is it is clone, in that the promisor is entirely rete e hominis obligation, hile the stipulator an sue eius by the actio osagency. Is a man stipulates sor paymen o ten Nisi tohimself and anothe who is notiis paterfamilias, in contract illis mod though there has Me much doubt whether insuch a cas the stipulator an sue so the whole sum agretaupon o oni hals the la is no setile in savour of thesmalle sum Is yo stipulate sor performance in savour osone in Your power, ali benefit unde in contrac is ahen hyyourseis sor our Word are a the oes of your son, as his Wotas are as ours in ali cases in hic heris meret anxinstrumentis acquisitio for ou. nother circumstanc hywhic a stipulatio may be avoicle is antis corresponden belWee questio an ans e rus here a man stipulates stomyo sor paymen os te a urei, and yo promiserave, o vice versu or here his question is unconditionat mur ans erconditional, o rice veris, provide only that in this latis caseth differenceris expres an clear that is to sancisci stipulates sor paymen o sulfilmen os a condition oris Somedeterminate future dari and yo answer: I promis to P D-clay, the contruci is volo; ut is yo meretranswer VI promise, yo are hel by this laconi replyrio have undeclinen payment omine clay, or subjectio the condition specifieo sor itis no essentia that every word used by the stipulator hould 6 be reperie in the ans er of the promisor Again no validstipulation canae madeae ee two persons os homine is in the wwer os in other. A flave incleed cannot be unde an obligation to either his masteri an cly else: ut childreni power cantes uno in savour os annone except theiriwn paterfamilias. The clumb os murae, cannot either stipulate or Promise nor camine deas, sor in promisee in stipulatio must

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'To m. 14Ihea the ansmer, and the promisor mustinea the question; and this malim it clea that, Me spmkin os person onlyWh are stone deas, notis inose ho ascit is saldhare har of hea g. A lunati cannot enter into any contractis all, 8 cause he cloes no understand what he is dolam n the sotheriandis pupi camenter into any contruci, provide that he has his maestan's authority, when necessa , scit is sorincurring an obligation, though no sor imposing an obligationon another person. his concession os legat capaci is dis 10 position is manifestinreasonable in respectis children whohave acquire&wme underatanding, sor childre below the ageos seven eam, o Who have jus passe that age, resemblelunatim in antis intelligence Thos however ho have jus complete their smenin ear re permitted by a beneficent interpretation os the law, in orde to promote their intereris to have in fame capaci in thos a maching the age of puberty; ut a chil below the latre age, hocis in paterna power, cannot in himself even it his ather's sanction. An impossibi conditio annexe to an obligation 1 Iinvalidates the stipulation. An impossibi condition is oneuhich, accordindito the coum os nature cannot be sulfilled as,sor instance, is one says: Moao promiserio grue is Iriouchine sis it m finger λ' ut is in stipulaticu rans: Domu promis to ove i I do not ouch the sis it myfingerῖ it is consideredinconditional, and accorclinonini

sue upo at once Again a verbal obligatio made belween 12 mons ho remo present,ith one nothercis Oid Thisrule howeve assorde contenti s person opportunities of litigation is alleging, aster ome intervat, that they, o their adversaries, hadiso been presenti in occasion in question and we have ineresore issue a constitution addresse to the advocates os Caesarea in orde Wit in more despatin toseule such disputes, herebnit is enacte that writte documents in evidenc os a contract,hic recite the presenc os the partim stalli taken tote indisputabie proos os theriaci, unies the person, who resoris to allegations usuali so dis- gracessit, proves by the cleares evidence either documentaryor borne is credibi Witnesses, that he or his adversa -aselsewhere than allege during the whole da on hic the

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aster his own death, or aster that of the promisma nor coulcione person ho was in another' power even stipulate rconu ance aster that ther' death, hecause he was deemeest sma with the voice of his parentis master and stipulations for conveyance the a besore the promisee' o promisor's decease were also volo. Stipulationsio ever, ach Hready been remarhed derive thei validit Do the conseritos the contracting parties, and we there re introduced a nece&sarnemendation in respect also os inis ut os la , is providin that a stipulation hesi e good hic harmin sor

ment in evidenceis a contraci states that s and w promisin, the promise is deeme to have been ive in ans e to a I precedin question. When severa acts os conveyance orperformance are compriSed in a single stipulation is the promisor simpl answer promis to conu , he hecomes

Conve only one or ome of them, he incum an obligation in respectis those only which are comprised in his ans er there heinii reality severat distinc stipulations os hic only oneor Some are considere to have acquire bincling orce sorsor ach actis conveyancei performance ther ought tome a19 Separate question and a separate ans er As has been atready observed, no ne an validi'stipulate sor perso ance to a