[PAULUS libro duodecimo ad Sabinum. ] §45.1.4.prEadem dicemus et si dolum abesse a te heredeque tuo stipulatus sim et aut promissor aut stipulator pluribus heredibus relictis decesserit.
[PAULUS, in the twelfth book on Sabinus.] We shall say the same even if I have stipulated that fraud be absent from you and your heir, and either the promisor or the stipulator has died leaving several heirs.
§45.1.4.1Cato libro quinto decimo scribit poena certae pecuniae promissa, si quid aliter factum sit, mortuo promissore si ex pluribus heredibus unus contra quam cautum sit fecerit, aut ab omnibus heredibus poenam committi pro portione hereditaria aut ab uno pro portione sua: ab omnibus, si id factum, de quo cautum est, indiuiduum sit, ueluti 'iter fieri', quia quod in partes diuidi non potest, ab omnibus quodammodo factum uideretur: at si de eo cautum sit, quod diuisionem recipiat, ueluti 'amplius non agi', tum eum heredem, qui aduersus ea fecit, pro portione sua solum poenam committere.
Cato writes in his fifteenth book that, when a penalty of a certain sum of money is promised if anything is done otherwise, if, upon the death of the promisor, one of several heirs has acted contrary to what was agreed, the penalty is either incurred by all the heirs in proportion to their hereditary shares, or by the one alone in proportion to his own share: by all, if the act agreed upon is indivisible, such as 'for a right of way to be made', because what cannot be divided into parts would seem in a way to have been done by all; but if it was agreed concerning something that admits of division, such as 'that no further action be brought', then only that heir who acted contrary to it incurs the penalty in proportion to his share.
differentiae hanc esse rationem, quod in priore casu omnes commississe uidentur, quod nisi in solidum peccari non poterit, 'illam stipulationem 'per te non fieri, quo minus mihi ire agere liceat?' sed uideamus, ne non idem hic sit, sed magis idem, quod in illa stipulatione 'Titium heredemque eius ratum habiturum': nam hac stipulatione et solus tenebitur, qui non habuerit ratum, et solus aget, a quo fuerit petitum: idque et Marcello uidetur, quamuis ipse dominus pro parte ratum habere non potest.
The reason for this distinction is that in the former case all are deemed to have committed the breach, because a wrong cannot be committed except as a whole. But what about 'that stipulation "that nothing be done by you to prevent me from going and driving"'? But let us see whether the case here is not different, or rather the same as in that stipulation 'that Titius and his heir will ratify it'; for under this stipulation only he who has not ratified will be held liable, and only he from whom it was demanded will bring an action: and this is also the opinion of Marcellus, although the owner himself cannot ratify in part.
§45.1.4.2Si is, qui duplam stipulatus est, decesserit pluribus heredibus relictis, unusquisque ob euictionem suae partis pro portione sua habebit actionem.
If he who has stipulated for double the value dies leaving several heirs, each one will have an action for the eviction of his own part in proportion to his share.
idemque est in stipulatione quoque fructuaria et damni infecti et ex operis noui nuntiatione: restitui tamen opus ex operis noui nuntiatione pro parte non potest.
And the same applies also in the stipulation concerning fruits, and for prospective damage, and arising from the notification of a new work; however, the work under the notification of a new work cannot be restored in part.
haec utilitatis causa ex parte stipulatorum recepta sunt: ipsi autem promissori pro parte neque restitutio neque defensio contingere potest.
These things have been accepted on the part of the stipulators for the sake of utility; but for the promisor himself, neither restoration nor defense in part can be available.