[AFRICANUS libro septimo quaestionum. ] §46.1.21.preres a debitore hereditario fideiussorem accepit, deinde hereditatem ex Trebelliano restituit: fideiussoris obligationem in suo statu manere ait idemque in hac causa seruandum, quod seruaretur, cum heres, contra quem emancipatus filius bonorum possessionem accepit, fideiussorem accepit.
[AFRICANUS in the seventh book of Questions.] An heir accepted a surety from a debtor of the inheritance, and then restored the inheritance in accordance with the Senatusconsultum Trebellianum. He says that the obligation of the surety remains in its own status, and that the same rule is to be observed in this case as would be observed when an heir, against whom an emancipated son has obtained possession of the goods, has accepted a surety.
ideoque in utraque specie transeunt actiones.
And therefore, in both cases, the actions are transferred.
§46.1.21.1Non est nouum, ut fideiussor duabus obligationibus eiusdem pecuniae nomine teneatur: nam si in diem acceptus mox pure accipiatur, ex utraque obligatur, et si fideiussor confideiussori heres exstiterit, idem erit.
It is not a new thing for a surety to be bound by two obligations on account of the same money; for if a surety who was accepted with a term is soon after accepted unconditionally, he is bound by both obligations, and the same will happen if a surety becomes the heir to his co-surety.
§46.1.21.2Seruo tuo pecuniam credidi: eum tu manumisisti: deinde eundem fideiussorem accepi.
I lent money to your slave; you manumitted him; and then I accepted him as a surety.
si quidem in eam obligationem fideiubeat, quae aduersus te intra annum sit, obligari eum ait: sin uero in naturalem suam, potius ut nihil agatur: non enim intellegi posse, ut quis pro se fideiubendo obligetur.
If indeed he becomes surety for that obligation which lies against you within a year, he says that he is bound. But if he becomes surety for his own natural obligation, it is rather the case that nothing is achieved, for it cannot be understood that anyone can be bound by becoming surety for himself.
quod si hic seruus manumissus fideiussori suo heres existat, durare causam fideiussionis putauit et tamen nihilo minus naturalem obligationem mansuram, ut, si obligatio ciuilis pereat, solutum repetere non possit.
But if this manumitted slave becomes the heir to his own surety, he thought that the cause of the suretyship remains, and nevertheless that the natural obligation will persist, so that, if the civil obligation is destroyed, what has been paid cannot be recovered.
nec his contrarium esse, quod, cum reus fideiussori heres existat, fideiussoria obligatio tollatur, quia tunc duplex obligatio ciuilis cum eodem esse non potest.
Nor is it contrary to this that, when the principal debtor becomes the heir to the surety, the obligation of suretyship is extinguished, because in that case there cannot be a double civil obligation with the same person.
retro quoque si fideiussor seruo manumisso heres exstiterit, eadem aduersus eum obligatio manet, quamuis et naturaliter teneatur nec pro se quis fideiubere possit.
Conversely, if the surety becomes the heir to the manumitted slave, the same obligation against him remains, although he is also bound naturally and no one can become surety for himself.
§46.1.21.3Quod si stipulator reum heredem instituerit, omnimodo fideiussoris obligationem peremit, siue ciuilis siue tantum naturalis in reum fuisset, quoniam quidem nemo potest apud eundem pro ipso obligatus esse.
But if the stipulator has appointed the principal debtor as heir, he extinguishes the obligation of the surety in every case, whether the obligation against the debtor had been civil or merely natural, since indeed no one can be bound to the same person on behalf of that very person.
quod si idem stipulator fideiussorem heredem scripserit, procul dubio solam fideiussoris obligationem peremit.
But if the same stipulator has written the surety as heir, without doubt he extinguishes only the obligation of the surety.
argumentum rei, quod, si possessio rerum debitoris data sit creditori, aeque dicendum est fideiussorem manere obligatum.
The proof of this matter is that, if possession of the debtor’s property is given to the creditor, it must equally be said that the surety remains bound.
§46.1.21.4Cum et tu et Titius eiusdem pecuniae rei essetis, eum, qui pro te fideiussit, posse et pro Titio fideiubere respondit, quamuis eandem pecuniam eidem debiturus sit: nec tamen inanem eam creditori futuram: nonnullis enim casibus emolumentum habituram, ueluti si ei, pro quo ante fideiussisset, heres existat: tunc enim confusa prima obligatione posteriorem duraturam.
When both you and Titius were principal debtors for the same money, he replied that the one who became surety for you can also become surety for Titius, even though he will owe the same money to the same creditor; and yet this will not be useless to the creditor, for in some cases it will yield an advantage, as for example if he becomes the heir to the person for whom he had previously become surety; for then, while the first obligation is merged, the subsequent one will remain.
§46.1.21.5Cum fideiussor reo stipulandi heres exstiterit, quaeritur, an, quasi ipse a se exegerit, habeat aduersus reum mandati actionem.
When a surety becomes the heir to the stipulator, it is asked whether he has an action of mandate against the principal debtor, as if he had exacted the payment from himself.
respondit, cum reus obligatus maneat, non posse intellegi ipsum a se fideiussorem pecuniam exegisse: itaque ex stipulatu potius quam mandati agere debebit.
He replied that, since the principal debtor remains bound, it cannot be understood that the surety has exacted the money from himself; therefore, he ought to bring an action on the stipulation rather than on mandate.