[IDEM libro quadragensimo sexto ad Sabinum. ] §46.1.5.prGeneraliter Iulianus ait eum, qui heres exstitit ei, pro quo interuenerat, liberari ex causa accessionis et solummodo quasi heredem rei teneri.
[THE SAME in the forty-sixth book on Sabinus.] Julian states generally that a person who has become the heir to someone for whom he had intervened is released from the accessory cause and is held liable solely as the heir of the principal debtor.
denique scripsit, si fideiussor heres extiterit ei, pro quo fideiussit, quasi reum esse obligatum, ex causa fideiussionis liberari: reum uero reo succedentem ex duabus causis esse obligatum.
Furthermore, he wrote that if a surety becomes the heir to the person for whom he has acted as surety, he is bound as if he were the principal debtor, and is released from the cause of suretyship; but that a principal debtor succeeding another principal debtor is bound on two grounds.
nec enim potest repperiri, quae obligatio quam peremat: at in fideiussore et reo repperitur, quia rei obligatio plenior est.
For it cannot be discovered which obligation would destroy which; whereas in the case of a surety and a principal debtor, it is discovered, because the obligation of the principal debtor is fuller.
nam ubi aliqua differentia est obligationum, potest constitui alteram per alteram peremi: cum uero duae eiusdem sint potestatis, non potest repperiri, cur altera potius quam altera consumeretur.
For where there is some difference between the obligations, it can be established that one is destroyed by the other; but when two obligations are of the same force, it cannot be discovered why one rather than the other should be extinguished.
refert autem haec ad speciem, in qua uult ostendere non esse nouum, ut duae obligationes in unius persona concurrant.
Now he relates this to a case in which he wishes to show that it is nothing new for two obligations to concur in the person of one individual.
est autem species talis.
The case is as follows.
si reus promittendi reo promittendi heres exstiterit, duas obligationes sustinet: item si reus stipulandi exstiterit heres rei stipulandi, duas species obligationis sustinebit: plane si ex altera earum egerit, utramque consumet, uidelicet quia natura obligationum duarum, quas haberet, ea esset, ut, cum altera earum in iudicium deduceretur, altera consumeretur.
If a co-promisor becomes the heir to another co-promisor, he sustains two obligations; likewise, if a co-stipulator becomes the heir to another co-stipulator, he will sustain two kinds of obligation. Clearly, if he sues on one of them, he will extinguish both, obviously because the nature of the two obligations which he has is such that when one of them is brought into court, the other is extinguished.