BOOK III. Pt. I. Ch. II. sed etiam facta: ut si stipulemur fieri aliquid vel non fieri.-§ 7, I. eod. 3, 15.1 Ulp. Haec stipulatio: fundum Tusculanum dari ? ostendit se certi esse continetque, ut dominium omnimodo efficiatur stipulatoris quoquo modo.-1. 75, § 10, D. eod.2 Id.: --Nemo rem suam utiliter stipulatur ; sane rem meam mihi restitui recte stipulari videor. -1. 82 pr. eod.3 Id. —si quis faciendum aliquid stipulatus sit, ut puta fundum tradi vel fossam fodiri vel insulam fabricari, vel operas, vel quid his simile. -1. 72 pr. eod.* Pomp. Faciendi verbo reddendi etiam causa continetur.-D. 50, 16, 175." Paul. Facere oportere et hanc significationem habet, ut abstineat quis ab eo facto, quod contra conventionem fierit, et curet ne fiat.1. 189 eod." According as the object of the performance is one in all respects definite from the very first (certum) or 1 Not only things, but also acts, can be made the object of a stipulation; as, if we stipulate for something to be done or not to be done. 2 This stipulation: 'to give the Tusculan estate' proves that it belongs to those that are definite, and comprehends the complete vesting of the ownership in every way in the stipulator. 3 No one makes a valid stipulation for his own property; it certainly appears to me that I lawfully stipulate for the return to me of my property. If a man have stipulated for anything to be done, for example, for the delivery of an estate, or the digging of a ditch, or the construction of a house, or services, or aught like these things. Under the word 'do' is included also the case of 'giving up.' 'To have to do' has indeed the meaning, that a man refrain from such act as would be contrary to the agreement, and, that one take care it does not happen. BOOK III. Pt. I. Ch. II. aSi paret dare oportere.' cere oportere' one devoid of such certainty as to its pecuniary value, which has first to be ascertained (incertum), obligations are divided into those certi' (ae)-condictio certi," and those incerti' (ae)-actio ex stipulatu (condictio incerti). The 'faciendi obligatio' always contem- Quidquid plates an incertum; whilst the object of the dandi paret dare faobligatio' can be either a certum or an incertum. (§ 198). Special examples of the incertum are generic performance-by which the object of obligation is not determined specifically, but merely according to genus—and, as a rule, that of which the determination admits of an alternative, i.e., a voluntary one. Gai. Stipulationum quaedam certae sunt quaedam incertae: certum est, quod ex pronuntiatione apparet, quid quale quantumque sit, ut ecce aurei decem, fundus Tusculanus, homo Stichus, tritici Africi optimi modii centum, vini Campani optimi amphorae centum.-D. 45, 1, 74.1 Id.: Ubi autem non apparet, quid quale quantumque est in stipulatione, incertam esse stipulationem dicendum est. Ergo si qui fundum sine propria appellatione vel hominem generaliter sine proprio nomine, aut vinum frumentumve sine qualitate dari sibi stipulatur, incertum deducit in obligationem. . . . § Fundi certi si quis usumfructum stipulatus fuerit, incertum intelligitur in obligationem deduxisse: hoc enim magis iure utimur. . . . § Qui id, quod in faciendo vel non faciendo consistit, stipulatur, incertum stipulari videtur. § Qui illud aut illud stipulatur veluti 'decem vel hominem Stichum,' utrum certum an incertum in obligationem deducat, non 1 Of stipulations, some are determinate, others indeterminate a determinate one is that which itself appears from the language, what it is, of what kind, and of what quantity; as, for instance, 10 gold-pieces, the Tusculan farm, the slave Stichus, 100 measures of the best African wheat, 100 jars of the best Campanian wine. BOOK III. Pt. I. Ch. II. immerito quaeritur: nam et res certae designantur, et utra earum potius praestanda sit, in incerto est. Sed utcumque is qui sibi electionem constituit adiectis his verbis utrum ego velim,' potest videri certum stipulatus, cum ei liceat vel 'hominem' tantum vel 'decem' tantum intendere 'sibi dari oportere': qui vero sibi electionem non constituit, incertum stipulatur.1. 75 pr., §§ 1, 3, 7, 8 eod.' Id.: -Si quis certum stipulatus fuerit, ex stipulatu actionem non habet, sed illa condicticia actione id persequi debet, per quam certum petimus.-D. 12, I, 24.2 ... 1 But where it is not clear what a thing is, of what kind, and of what quantity the object of the stipulation is, we must speak of it as an indeterminate stipulation. § If, therefore, a man stipulate for the conveyance to him of an estate without a particular designation, or of a slave in general without his proper name, or of wine or corn without (a specification of) the quality, he contracts an indeterminate obligation. . . . § If a man have stipulated for the usufruct of a definite parcel of land, he is taken to have contracted an indeterminate obligation; for this is the better rule, adopted by us. § He that makes a stipulation consisting of an act or forbearance is considered to make an indefinite stipulation. . . . § He that stipulates this or that, as, for example, 'ten [aurei] or the slave Stichus,' in respect of such the question not unjustly arises, whether he contracts a determinate or an indeterminate obligation; for although defi nite things be designated, yet it remains uncertain which of the two shall the rather be rendered. But at any rate one can suppose of him who has made his choice, by the addition of these words: Whichever of the two I like,' that he stipulates for something certain, since he is at liberty to apply that which must be given him' to the 'slave' only, or to the 'ten' only; but he that does not make his choice makes an uncertain stipulation. 2 If a man should have made a determinate stipulation, he has no action upon the stipulation, but he must take proceedings by that actio condicticia by which we sue for what is certain. § 106. PRINCIPAL AND ACCESSORY OBJECT. INTEREST." BOOK III. Pt. I. Ch. 11. a Cf. Smith, 'Dicty. of Fenus. с Besides the original and principal object of per- Antiqq. e. formance, the obligation may also comprise the increase thereof-natural or juristic products-as accessory ' § 73. object. In particular, the debtor, if the obligation relates to a sum of money (or a quantity of other fungibles), has besides this, which is called Capital (sors, caput), often still to pay Interest (usurae, foenus) as an equivalent, represented by a percentage upon such capital, for the use of it allowed to the debtor or withdrawn from the creditor. The obligation to pay interest is always an addition to the principal obligation, with the discharge of which it is-at any rate for the future-ipso facto extinguished. It rests either upon D. 46, 2, 18. contract (usurae conventionales) or upon statutory provision and judicial disposition (usurae legales, iudiciales, i.e. quae officio iudicis praestantur), e.g., interest charged in respect of delay. The latter occurs only in bonae fidei obligationes: the former both in these and in a stricti iuris obligatio, but in different forms. To ground an obligation to pay interest in a bonae fidei obligatio, there is need only of an informal collateral agreement, and it then constitutes (just as that which rests upon a legal precept) a mere extension of the principal obligation, but can also be made independently available by the action that arises upon it; whilst the principal contract can only be enforced in conjunction with it. On the other hand, in stricti iuris obligationes (e g., loan) an obligation to pay interest is originated only by an independent stipulatio, and it then forms the subject of a special-although accessory-obligation besides the principal obligation relating to the capital; and naturally, with the same result, a stipulatio for interest can be also contracted in respect of a bonae fidei obligatio. Imp. Gord. Si deposita pecunia is qui eam suscepit usus est, non dubium est etiam usuras BOOK III. Pt. 1. Ch. II. a § 22. § 147. debere praestare. Hermog. Pretii sorte licet post moram soluta, usurae peti non possunt, cum hae non sint in obligatione, sed officio iudicis praestentur.-D. 19, 1, 49, & 1.2 Ulp. Qui sortem stipulatur et usuras quascumque, certum et incertum stipulatus videtur; et tot stipulationes sunt, quot res sunt.-D. 45, 1, 75, 9.3 The rate of interest (modus usurarum) is the fractional relation between the interest and the capital lent, reckoned for a definite space of time (ordinarily a year). In the most ancient time interest amongst the Romans was reckoned according to the uncial system. Thus : = 12 un Unciarium foenus is I uncia for I as (= ciae) pro anno, equal to 83 per cent. for the year of ten months, or 10 per cent. for that of twelve months." Semiunciarium foenus 5 per cent." = Later on the calculation was made according to monthly percentages-(Kalendaria, instrumentum Kal 1 If he that has received money upon deposit has made use of it, there is no doubt he must also find interest. But if, when you have taken proceedings by the action of deposit, condemnation has alone followed for the capital, you cannot proceed further on account of the interest. For there are not two actions, one for capital, the other for interest, but a single action; and if condemnation have resulted from this, a repeated action is met by the plea of res iudicata. If the principal have been paid, although after a delay, interest cannot be sued for, since this is not contained in the I.e., if at all. obligation, but is given by the judicial authority. с 3 He that stipulates for principal and any interest, is considered to stipulate for something definite and indefinite; and there are as many stipulations as there are objects. |