[UENULEIUS libro tertio stipulationum. ] §46.2.31.prSi rem aliquam dari stipulatus sum, deinde eandem sub condicione nouandi animo ab eodem stipuler, manere oportet rem in rebus humanis, ut nouationi locus sit, nisi si per promissorem steterit, quo minus daret.
[VENULEIUS, Stipulations, Book 3.] If I have stipulated that some thing be given, and then, with the intention of novation, I stipulate for the same thing from the same person under a condition, the thing must remain in human existence for there to be room for novation, unless it has been due to the promisor that he did not give it.
ideoque si hominem mihi dare te oporteat et in mora fueris, quo minus dares, etiam defuncto eo teneris: et si, priusquam decederet, cum iam mora facta sit, eundem a te sub condicione stipulatus fuero et seruus postea decesserit, deinde condicio exstiterit, cum iam ex stipulatu obligatus es mihi, nouatio quoque fiet.
And therefore, if you ought to give me a slave and you have been in default in giving him, you remain liable even after his death; and if, before he died, when default had already occurred, I stipulated for the same slave from you under a condition, and the slave subsequently died, and then the condition was fulfilled, since you are already bound to me under the stipulation, novation also will take place.
§46.2.31.1Si duo rei stipulandi sint, an alter ius nouandi habeat, quaeritur et quid iuris unusquisque sibi adquisierit.
If there are two joint stipulators, it is asked whether one of them has the right of novation, and what right each has acquired for himself.
fere autem conuenit et uni recte solui et unum iudicium petentem totam rem in litem deducere, item unius acceptilatione peremi utrisque obligationem: ex quibus colligitur unumquemque perinde sibi adquisisse, ac si solus stipulatus esset, excepto eo quod etiam facto eius, cum quo commune ius stipulantis est, amittere debitorem potest.
Moreover, it is generally agreed both that payment is correctly made to one, and that one who brings an action brings the whole matter into litigation, and likewise that the obligation of both is extinguished by the acceptilation of one; from which it is inferred that each has acquired for himself just as if he had stipulated alone, except that he can also lose the debtor by the act of the one with whom he shares the joint right of stipulation.
secundum quae si unus ab aliquo stipuletur, nouatione quoque liberare eum ab altero poterit, cum id specialiter agit, eo magis cum eam stipulationem similem esse solutioni existimemus.
According to this, if one stipulates from someone, he can also release him from the other by novation, when he does this specifically, all the more so since we consider that stipulation to be similar to payment.
alioquin quid dicemus, si unus delegauerit creditori suo communem debitorem isque ab eo stipulatus fuerit? aut mulier fundum iusserit doti promittere uiro, uel nuptura ipsi doti eum promiserit? nam debitor ab utroque liberabitur.
Otherwise, what shall we say if one has delegated the common debtor to his own creditor, and the latter has stipulated from him? Or if a woman has ordered the debtor to promise land as a dowry to her husband, or she who is about to marry has promised it as a dowry herself? For the debtor will be released from both.