Everything which is subject to our ownership, whether movable or
belonging to the soil, can become an object of stipulation.
(1) If, however, anyone has stipulated for something which, in the
nature of things does not exist, or cannot be given; as, for instance, for Stichus who is dead, but who he thought was living, or for a
hippocentaur which cannot exist, the stipulation will be of no effect.
(2) The rule is the same where anyone stipulates for sacred or religious
property which he believes to be profane, or for public property destined for
the perpetual use of the people, as a forum, or a theatre, or for a freeman
whom he believed to be a slave, or for something which is not an object of
commerce, or for the gift of his own property; nor will the stipulation be in
abeyance because the public property may become private, or a freeman may be
reduced to slavery, or the stipulator may be able to obtain a commercial right
to the property, or what belongs to him may cease to be his, but the
stipulation immediately becomes void.
On the other hand, although property may in the first place have been
legally the subject of a stipulation, still if it should afterwards be included
among those things above mentioned without the act of the party making the
promise, the stipulation becomes invalid. Moreover, a stipulation like the
following is void from the beginning, namely: "Do you promise to give Lucius
Titius when he shall become a slave?" and others of the same kind, for things
which by their nature are exempt from our ownership can in no way become the
subjects of an obligation.
(3) If a man agrees that another shall give or do something, he will
incur no obligation; for instance, if he agrees that Titius shall pay five
aurei; although he will be bound if he agrees that he will make Titius
pay them.
(4) Where any man stipulates for someone who is not subject to his
control, his act is void. It can, however, be contrived that payment shall be
made to someone who is a stranger; for example, if someone stipulates as
follows: "Do you agree to pay me or Seius?" so that the obligation is made for
the benefit of the stipulator, and yet he may legally pay Seius even though he
is unwilling; and the release from liability takes place by operation of law,
while the party has an action of mandate against Seius.
Where, however, anyone has stipulated for ten aurei to be paid to
himself and to another to whose authority he is not subject, the stipulation
will be valid; though it has been questioned whether the entire sum mentioned
in the stipulation is due to him or only half of it; but is now decided that he
is entitled to no more than half of the same. If you have entered into a
stipulation for some one under your control, you can acquire the benefit of it
for yourself, for the reason that your statements are, as it were, those of
your son; just as the statements of your son are understood to be yours with
respect to such things as can be acquired for yourself.
(5) Moreover, a stipulation is inoperative where anyone does not respond
when asked a question; for example, if he stipulates for ten aurei to be
paid by you and you promise five, or vice-versa; or if he stipulates
absolutely, and you promise under a condition, or vice-versa; provided,
however, that you make a statement as follows, in answer to the person
stipulating under a condition or for a particular time: "I agree to do this for to-day"; for if you merely answer, "I promise", you
are considered to have bound yourself in a few words for the day or under the
condition stated; as it is unnecessary when making the answer that everything
mentioned by the stipulator should be repeated.
(6) Moreover, a stipulation is void if you make an agreement with
respect to a person who is under your control, or if he makes an agreement with
respect to yourself. A slave, however, not only cannot bind himself to his
master, but he cannot do so to anyone else, but sons of a family can bind
themselves to others.
(7) It is evident that a person who is dumb can neither stipulate nor
promise. This also applies to one who is deaf; for the reason that he who
stipulates should hear the words of the party making the promise, and he who
promises those of him who stipulates. It is apparent from this that we are not
speaking with reference to one who hears with difficulty, but of one who does
not hear at all.
(8) An insane person cannot transact any business because he does not
understand what he is doing.
(9) A ward can lawfully transact any business, provided his guardian
intervenes whenever his consent is necessary, for example, where the ward
obligates himself; for he can obligate another to himself without the consent
of his guardian.
(10) What We have stated with reference to wards is only true concerning
those who have already a certain degree of intelligence; for an infant, and one
who is almost an infant do not differ greatly from an insane person, because
minors of this age have no intelligence; nevertheless, a more liberal
interpretation of the law has granted minors just emerged from infancy, for
their benefit, the same capacity as those who have nearly arrived at puberty. A
child who has not arrived at puberty and is under the control of his father
cannot be bound even with his father's consent.
(11) When an impossible condition is added to the obligation the
stipulation is void. A condition is considered impossible where nature opposes
its accomplishment, for instance, if anyone should say: "Do you agree to pay if
I touch heaven with my finger?" but if he stipulates as follows: "Do you
promise to pay if I do not touch heaven with my finger?" the obligation is
understood to have been contracted absolutely, and therefore a demand can be
made for payment at once.
(12) Moreover, a verbal obligation made between persons who are absent
from one another is invalid; but as this affords ground for litigation between
parties who are contentious, and who, perhaps after a certain time, make
allegations of this kind and insist that either they or their adversaries were
not present; a Constitution of Ours which We have addressed to the advocates of
Cæsarea has been published by Us for the prompt disposal of such actions,
in which We have decreed that documents which set forth that the parties were
present are to be believed in every instance, unless he who makes use of such
impudent statements can prove by the most conclusive evidence, either in
writing or by reliable witnesses, that either he or his adversary was
somewhere else during the entire day on which the instrument was drawn up.
(13) In former times no one could stipulate that something should be
paid to him after his death, any more than he could after the death of the
party with whom the contract was made. Nor could anyone under the control of
another stipulate that this should be done after the death of the latter,
because he is understood to speak with the voice of his father or master.
Again, if anyone stipulated as follows: "Will you pay on the day before I die,
or on the day before you die?" the stipulation was inoperative. But since
stipulations are valid through the consent of the contracting parties, (as has
already been stated) We have determined to introduce a necessary amendment into
this part of the law, so that the stipulation is valid whether it contains the
terms, "after the death", or "on the day before the death" of him who makes the
stipulation or promise.
(14) Again, when anyone stipulates as follows: "Do you agree to pay
to-day if a ship shall hereafter arrive from Asia?" the stipulation is void,
because the terms are preposterous. But since Leo of renowned memory held that
this same stipulation, designated as preposterous, should not be rejected when
relating to dowries, We have determined to invest it with full force, so that
an expression of this kind in a stipulation is not only valid with reference to
dowries but also with reference to all other matters.
(15) A stipulation expressed as follows was considered valid among the
ancients and is so still; for example, if Titius should say: "Do you promise to
pay when I shall be dying, or when you shall be dying?"
(16) We can also legally stipulate for something to be paid or performed
after the death of another party.
(17) If it is stated in some instrument that a certain party has made a
promise, it is held to be the same as if answer had been made to a former
question.
(18) Whenever several things are included in one stipulation, he who
makes the promise is bound for all of them, if he simply answers, "I promise to
pay"; but if he agrees to pay one or a certain number of the sums, an
obligation is contracted for all those which he agreed to pay; for among
several stipulations one or a certain number are deemed to be perfected; since
we should stipulate for things one by one, and answer with reference to them in
the same manner.
(19) No one, as has already been stated, can stipulate for another, for
obligations of this description have been devised so that any one may acquire
for himself whatever is for his own advantage; but where something is given to
another no advantage accrues to the party making the stipulation. If anyone
wishes to do this it is evident that he must stipulate for a penalty; so that,
if the act should not be done as agreed upon, the stipulation for the penalty
may be for his benefit, even if he has no interest in the transaction; for when
anyone stipulates for a penalty it is not considered what his interest may be
but what is the amount stated in the condition of the stipulation. Therefore,
if anyone stipulates for payment to be made to Titius, his act is
void, but if he adds by way of penalty: "Do you agree to pay me so many
aurei if you do not pay?" then the stipulation becomes binding.
(20) But if one party stipulates for another and he himself is
interested, it has been settled that the stipulation is valid; for if a party
who has begun to administer the guardianship of a ward, relinquishes the
administration to his fellow-guardian, and stipulates that the property of his
ward shall be secure, the obligation is binding; as it is to the interest of
the stipulator that what he agreed to shall be performed, since he would be
liable to the ward for any improper management of his affairs. Therefore, also
where anyone stipulates for payment to be made to his agent the stipulation
will be good; and if he stipulates for something in which he is interested, to
be given to his creditor, so that, for example, no penalty may attach, or land
encumbered may not be sold, the stipulation is valid.
(21) On the other hand, he who has promised that a third party shall
perform some act is not considered liable, unless he himself has agreed to a
penalty.
(22) Moreover, no one can stipulate that property shall become his under
any condition by which it may actually do so.
(23) Where the party making the stipulation means one thing and he who
makes the promise another, no obligation is contracted, any more than if the
answer had no reference to the question; as, for instance, where some one
stipulated that the slave Stichus was to be delivered by you, and you had
Pamphilus, whom you thought was called Stichus, in your mind.
(24) A promise made for a dishonorable consideration is void,(1)
as for instance, where a man agrees to commit murder or sacrilege.
(25) When anyone has made a stipulation under a certain condition, his
heir can bring suit after the condition has been fulfilled, even though the
party has died before that time. The same rule applies to the promisor.
(26) Anyone who stipulates for an article to be delivered this year or
this month, cannot legally bring suit until the entire year or month in which
delivery can be made has elapsed.
(27) If you stipulate to give a tract of land or a slave, you cannot
bring an action immediately, but only after a sufficient time has elapsed for
delivery of the same to have been made.(2)
FOOTNOTES
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