non erunt, tum viginti milia dari.'-D. 17, 2, This gradually led to importance being no longer attached to the verbal promise of the contracting parties, when there was such written evidence of the employment of the formula of stipulatio, and supposing that they were personally present. Paul. v. 7, § 2: Quodsi scriptum fuerit instrumento, promisisse aliquem, perinde habetur, atque si interrogatione praecedente responsum sit.2 Id. Cum Septicius litteris suis praestiturum se caverit pecuniam, . . . si inter praesentes actum est, intelligendum etiam a parte Lucii Titii praecessisse verba stipulationis.-1. 134, § 2, D. h. t.3 Indeed, finally, an actual presumption obtained of the presence of the contracting parties. Inst. iii. 19, § 12: Item verborum obligatio inter absentes concepta inutilis est. Sed cum hoc materiam litium contentiosis hominibus praestabat, . . . ideo nostra constitutio . . . introducta est, per quam disposuimus, tales scripturas, quae praesto esse partes indicant, omnimodo esse 1 Two persons have entered into partnership, to give instruction in grammar, and to share such profit as they should derive from that pursuit; their wishes as to the performance of such transaction they have in writing set forth in a partnership agreement, and they have then made a mutual stipulation in the following terms: that which is above written shall be so done and performed, and nothing shall be done in contravention of it; if such things shall not be given and done, then twenty thousand &c. shall be given.' 2 But if it shall have been written in a document that any one has made a promise, it is regarded just as if a question precede and answer be given. 3 When Sept. in writing bound himself to pay the principal if the transaction took place between the parties in sum, each other's presence, it is to be supposed a stipulative inquiry also proceeded from L. T. BOOK III. Pt. I. Ch. 11. BOOK III. Pt. I. Ch. II. a D. 2, 14, 7, 12. Sc. stipulationes. credendas, nisi ipse, qui talibus utitur improbis allegationibus, manifestissimis probationibus, vel per scripturam vel per testes idoneos, approbaverit, in ipso toto die, quo conficiebatur instrumentum, sese vel adversarium suum in aliis locis esse.1 In its very nature, the stipulatio was an extremely subservient, and therefore much favoured, form of contract, to which every juristically possible subject-matter of a contract could be adapted. Actionability, and the character of a stringently binding obligation, was accordingly imparted to every obligatory agreement by its being clothed in a stipulatio, or by appending the formula of stipulation;" by which at the same time is explained how the Romans in the discussion of the general doctrines of the Law of Obligation (especially the principles that govern the entering into contracts) give the primary place to STIPULATIO, as the chief and normal case of obligations. Pomp. Conventionales sunt quae ex conventione reorum fiunt; quarum totidem genera sunt, quot paene dixerim, rerum contrahendarum: nam et ob ipsam verborum obligationem fiunt et pendent ex negotio contracto.-1. 5 pr., D. h. t.2 1 Likewise, a verbal obligation entered into between persons absent (from each other) is invalid. But as this afforded occasion for suits by litigious persons, . . . our constitution. has been introduced, by which we have enacted that those documents which prove the presence of the parties should be credited in all cases, unless he who avails himself of such disreputable assertions, by the clearest proofs, whether by means of a written document or by credible witnesses, has established that during the whole day on which the document was prepared, he himself or his opponent was at another place. 2 Conventional (stipulations) are such as arise from the agreement of the contracting parties; of which there are just as many classes as, I might almost say, matters to contract about; for they arise by reason of the verbal obligation itself, and depend upon the business contracted. Paul. v. 7, § 1: Obligationum firmandarum gratia stipulationes inductae sunt.1 Id. ii. 22, § 2: Omnibus pactis stipulatio subiici debet, ut ex stipulatu actio nasci possit." A second case of the verborum obligationes is 'dotis dictio,' i.e., a promise made to the intending husband, and by him informally accepted, of a definite dos, but which bound only certain persons." Ulp. vi. 2: Dotem dicere potest mulier, quae nuptura est, et debitor mulieris, si iussu eius dicat; item parens mulieris virilis sexus per virilem sexum cognatione iunctus, veluti pater, avus paternus. 3 Terent. Andr. v. 4, 47: Ch. Dos, Pamphile, est decem talenta.-P. Accipio. -Donat. ad h. 1.: Ille nisi dixisset 'accipio,' dos non esset; datio enim ab acceptione confirmatur.* The 'iurata operarum promissio' of the libertus. has already been dealt with. § 118. ADSTIPULATIO AND ADPROMISSIO. SURETYSHIP. BOOK III. Pt. I. Ch. II, a § 146. ' § 38. Both upon the active and the passive side of the verborum obligatio can other persons also come in besides the original contracting parties, as accessory creditor or debtor for the same performance. • § 111. 1 Stipulations have been introduced in order to strengthen obligations. 2 A stipulation ought to be added to all bargains, so that an action can arise from the stipulation. 3 A woman about to marry can specify a dowry, and a woman's debtor, if he do so by her direction; likewise a male ascendant of the woman related to her through males, as her father, or paternal grandfather. The dowry, Pamphilus, is ten talents.-Agreed! Unless he had said, 'Agreed,' there would not have been a dowry; for a gift is confirmed by acceptance. с BOOK III. Pt. 1. Ch. II. a Idem mihi dare spondes? The form for this was adstipulatio' and 'adpromissio.' Gai. iii. § 113: Item minus adstipulari potest, plus non potest . . . non solum autem in quantitate, sed etiam in tempore minus et plus intelligitur.—§ 126: In eo iure quoque par condicio est omnium, sponsorum fidepromissorum fideiussorum, quod ita obligari non possunt, ut plus debeant, quam debet is pro quo obligantur: at ex diverso, ut minus debeant, obligari possunt, sicut in adstipulatoris persona diximus: nam ut adstipulatoris ita et horum obligatio accessio est principalis obligationis, nec plus in accessione esse potest, quam in principali re.' The Adstipulator' is the third party whose participation is procured by the principal stipulator, and who obtains a promise from the debtor of the same performance to himself." Correality exists between him and the principal creditor; but he is responsible to the latter to make over the payment rendered to him by the debtor (for which at first indeed a stipulation of restitution was necessary) with the actio mandati,' as well as for the fraudulent destruction of the obligation effected by him, actio legis Aquiliae 'since the actio was not introduced until a later period. Gai. iii. §§ 110-III: Possumus ad id quod stipulamur, alium adhibere qui idem stipuletur, D. 9, 2, 27, 5. With the 1 He can likewise adstipulate for less, but cannot for more. . . . But the more and the less are to be understood with reference not only to quantity but also to time.-In one point of law the position of all, sponsors, fidepromissors and fidejussors, is alike, that they cannot be so made liable as to owe more than he owes for whom they are bound. But, on the other hand, they can be so bound as to owe less, as we have stated in the case of the adstipulator; for, like the adstipulator, their obligation is accessory to the principal one, and there cannot be more in the accessory than in the principal thing. quem vulgo adstipulatorem vocamus. Et huic BOOK III. а Aquiliae. Ib. § 215 Capite secundo" in adstipulatorem, a Sc. legis qui pecuniam in fraudem stipulatoris acceptam fecerit, quanti ea res est, tanti actio constituitur.2 19, 4. The adstipulatio was indeed originally intended to effect the judicial enforcement by another of the claim when the appointment of a representative was still disallowed or much restricted; later on its employment was confined to the stipulatio post mortem,' with the recognition of which it naturally sank into obscurity. Cf. Inst. 3. Ib. § 117: Adstipulatorem vero fere tunc solum adhibemus, cum ita stipulamur, ut aliquid post mortem nostram detur, [quod cum] stipulando nihil agimus, adhibetur adstipulator, ut is post mortem nostram agat: qui si quid fuerit consecutus, de restituendo eo mandati iudicio heredi nostro tenetur.3 Inst. iii. 19, § 13: Post mortem suam dari sibi nemo stipulari poterat, non magis quam post eius mortem, a quo stipulabatur. . . . Sed cum ex consensu contrahentium stipulationes valent, pla 1 We can, however, join another to stipulate for the same as that for which we stipulate, whom we commonly call an 'adstipulator.' And an action is equally available to him, and payment can as well be made to him as to us. But whatever he has recovered he may be compelled to restore to us by an action of mandate. 2 By the second chapter, an action for such an amount as the value of the thing is established against the adstipulator, who in fraud of the stipulator has given an acquittance. But we generally employ an adstipulator alone when we are stipulating for something to be given after our death; for since we accomplish nothing by such a stipulation, an adstipulator is added, that he may take proceedings after our death; and if he recover anything, he is liable by the action of mandate to make it over to our heir. |