[IAUOLENUS libro undecimo epistularum. ] §46.1.44.prStipulatus es opus arbitratu tuo ante certam diem fieri, quod si effectum non esset, quanti ut efficiatur opus locasses, tanti fideiussores cepisti: et quia opus effectum non erat, alii locasti et, cum posterior conductor satis non daret, ipse opus fecisti: quaero, an fideiussor teneatur.
[JAVOLENUS, in the eleventh book of Letters.] You stipulated that a work should be completed by a certain day according to your judgment, and you accepted sureties for such an amount as you should lease the work for it to be completed, if it were not completed; and because the work was not completed, you leased it to another, and when the second contractor did not give sufficient security, you did the work yourself. I ask whether the surety is bound.
respondit: secundum ea uerba stipulationis, quae a te proposita sunt, fideiussores non tenentur.
He answered: According to the words of the stipulation that were proposed by you, the sureties are not bound.
non enim id fecisti, quod in stipulatione conuenerat, id est opus alii non locasti, tametsi postea locasti: ea enim locatio, quam secutus es, perinde est, ac si interposita non esset et si statim tu opus facere coepisses.
For you did not do what had been agreed upon in the stipulation, that is, you did not lease the work to another, even though you did lease it afterwards; for that leasing which you pursued is just as if it had not intervened, and as if you had immediately begun to do the work yourself.