[ULPIANUS libro uicensimo septimo ad edictum. ] §13.5.1.prHoc edicto praetor fauet naturali aequitati: qui constituta ex consensu facta custodit, quoniam graue est fidem fallere.
[ULPIANUS from the twenty-seventh book on the Edict.] By this edict the praetor favors natural equity: he protects promises of payment made by consent, since it is a serious matter to betray trust.
§13.5.1.1Ait praetor: 'Qui pecuniam debitam constituit'.
The praetor says: 'He who makes a promise to pay money that is due'.
'qui' sic accipiendum est 'quaeue'', nam et mulieres de constituta tenentur, si non intercesserint.
'He who' is to be understood as 'or she who', for even women are held liable under the action on a promise of payment, provided they have not interceded.
§13.5.1.2De pupillo etsi nihil sit expressum edicto, attamen sine tutoris auctoritate constituendo non obligatur.
Although nothing is expressly said in the edict about a ward, nevertheless, a ward is not bound by making a promise of payment without the authority of their guardian.
§13.5.1.3Sed si filius familias constituerit, an teneatur, quaeritur sed puto uerum et ipsum constituentem teneri et patrem de peculio.
But if a son-in-power makes a promise of payment, the question is raised whether he is held liable; but I think it is correct that both the promisor himself is held liable, and his father is liable to the extent of the peculium.
§13.5.1.4Eum, qui inutiliter stipulatus est, cum stipulari uoluerit, non constitui sibi, dicendum est de constituta experiri non posse, quoniam non animo constituentis, sed promittentis factum sit.
It must be said that a person who has entered into an invalid stipulation, when he intended to stipulate, cannot sue on the action on a promise of payment as if a promise had been made to him, because the act was done not with the intention of making a promise of payment, but with the intention of making a formal promise.
§13.5.1.5An potest aliud constitui quam quod debetur, quaesitum est.
The question has been asked whether something other than what is owed can be promised.
sed cum iam placet rem pro re solui posse, nihil prohibet et aliud pro debito constitui: denique si quis centum debens frumentum eiusdem pretii constituat, puto ualere constitutum.
But since it is now accepted that a thing can be paid in place of another thing, nothing prevents something else from being promised in place of the debt: therefore, if someone owing one hundred promises corn of the same value, I think the promise is valid.
§13.5.1.6Debitum autem ex quacumque causa potest constitui, id est ex quocumque contractu siue certi siue incerti, et si ex causa emptionis quis pretium debeat uel ex causa dotis uel ex causa tutelae uel ex quocumque alio contractu.
Moreover, a debt arising from any cause whatsoever can be promised, that is, from any contract, whether for a certain or uncertain amount, and whether someone owes the price from a sale, or from a dowry, or from a guardianship, or from any other contract.
§13.5.1.7Debitum autem uel natura sufficit.
And even a natural debt is sufficient.
§13.5.1.8Sed et is, qui honoraria actione, non iure ciuili obligatus est, constituendo tenetur: uidetur enim debitum et quod iure honorario debetur.
But also he who is obligated by an honorary action, and not by civil law, is bound by making a promise of payment: for what is owed under honorary law is also deemed a debt.
et ideo et pater et dominus de peculio obstricti si constituerint, tenebuntur usque ad eam quantitatem, quae tunc fuit in peculio, cum constituebatur: ceterum si plus suo nomine constituit, non tenebitur in id quod plus est.
And therefore, if a father and a master, who are liable to the extent of the peculium, make a promise of payment, they will be held liable up to the amount which was in the peculium at the time the promise was made: but if he promised more in his own name, he will not be held liable for the excess.