[PAULUS libro quinto decimo responsorum. ] §45.1.134.prTitia, quae ex alio filium habebat, in matrimonium coit Gaio Seio habenti filiam: et tempore matrimonii consenserunt, ut filia Gaii Seii filio Titiae desponderetur, et interpositum est instrumentum et adiecta poena, si quis eorum nuptiis impedimento fuisset: postea Gaius Seius constante matrimonio diem suum obiit et filia eius noluit nubere: quaero, an Gaii Seii heredes teneantur ex stipulatione.
[PAULUS, Opinions, book 15.] Titia, who had a son by another man, married Gaius Seius, who had a daughter; and during the marriage they agreed that the daughter of Gaius Seius should be betrothed to the son of Titia, and a written instrument was drawn up and a penalty added, if anyone of them should stand in the way of the nuptials. Afterwards, Gaius Seius died while the marriage was still standing, and his daughter refused to marry. I ask whether the heirs of Gaius Seius are liable under the stipulation.
respondit ex stipulatione, quae proponeretur, cum non secundum bonos mores interposita sit, agenti exceptionem doli mali obstaturam, quia inhonestum uisum est uinculo poenae matrimonia obstringi siue futura siue iam contracta.
He answered that under the stipulation which was set forth, since it was not entered into in accordance with good morals, an objection of fraud (exceptio doli) would stand in the way of the plaintiff, because it is deemed dishonorable for marriages, whether future or already contracted, to be bound by the bond of a penalty.
§45.1.134.1Idem respondit: plerumque ea, quae praefationibus conuenisse concipiuntur, etiam in stipulationibus repetita creduntur, sic tamen, ut non ex ea repetitione inutilis efficiatur stipulatio.
The same answered: generally, those things which are drafted as having been agreed upon in the prefaces are believed to be repeated also in the stipulations, in such a way, however, that the stipulation is not rendered useless by that repetition.
§45.1.134.2Idem respondit, cum Septicius litteris suis praestaturum se cauerit pecuniam et usuras eius semisses, quae apud Sempronium depositae sint: si inter praesentes actum est, intellegendum etiam a parte Lucii Titii praecessisse uerba stipulationis.
The same answered that when Septicius has guaranteed by his letter that he would pay the money and its interest at six percent, which had been deposited with Sempronius: if the transaction was done between parties present, it must be understood that the words of stipulation had also preceded on the part of Lucius Titius.
§45.1.134.3Idem respondit, quotiens pluribus specialiter pactis stipulatio una omnibus subicitur, quamuis una interrogatio et responsum unum subiciatur, tamen proinde haberi, ac si singulae species in stipulationem deductae fuissent.
The same answered that whenever one stipulation is subjoined to all of several specific pacts, although only one interrogation and one answer are subjoined, yet it is to be treated just as if the individual matters had been brought into the stipulation.