[AFRICANUS libro septimo quaestionum. ] §46.3.38.prCum quis sibi aut Titio dari stipulatus sit, magis esse ait, ut ita demum recte Titio solui dicendum sit, si in eodem statu maneat, quo fuit, cum stipulatio interponeretur: ceterum siue in adoptionem siue in exilium ierit uel aqua et igni ei interdictum uel seruus factus sit, non recte ei solui dicendum: tacite enim inesse haec conuentio stipulationi uidetur 'si in eadem causa maneat'. §46.3.38.1Si debitorem meum iusserim Titio soluere, deinde Titium uetuerim accipere et debitor ignorans soluerit, ita eum liberari existimauit, si non ea mente Titius nummos acceperit, ut eos lucretur.
[AFRICANUS in the seventh book of Questions.]\n\nWhen anyone has stipulated for a thing to be given to himself or to Titius, he says that it is rather the case that payment is to be said to be rightly made to Titius only if Titius remains in the same status in which he was when the stipulation was entered into; but if he has gone into adoption or into exile, or has been interdicted from water and fire, or has become a slave, payment is not to be said to be rightly made to him; for this tacit agreement seems to be inherent in the stipulation: "if he remains in the same condition."\n\nIf I should order my debtor to pay Titius, and then forbid Titius to receive it, and the debtor pays in ignorance, he thought that the debtor is released only if Titius did not receive the money with the intention of gaining a profit from it.
alioquin, quoniam furtum eorum sit facturus, mansuros eos debitoris et ideo liberationem quidem ipso iure non posse contingere debitori, exceptione tamen ei succurri aequum esse, si paratus sit conditionem furtiuam, quam aduersus Titium habet, mihi praestare: sicuti seruatur, cum maritus uxori donaturus debitorem suum iubeat soluere: nam ibi quoque, quia nummi mulieris non fiunt, debitorem non liberari, sed exceptione eum aduersus maritum tuendum esse, si conditionem, quam aduersus mulierem habet, praestet.
Otherwise, since he would be committing theft of them, the money would remain the debtor's, and therefore a release ipso iure indeed cannot occur for the debtor; but it is equitable that he be assisted by an exception, if he is prepared to transfer to me the condictio furtiva which he has against Titius. This is just as is observed when a husband, intending to make a gift to his wife, orders his debtor to pay her; for there also, because the money does not become the woman's, the debtor is not released, but he must be protected by an exception against the husband, if he transfers the condictio which he has against the woman.
furti tamen actionem in proposito mihi post diuortium competituram, quando mea intersit interceptos nummos non esse. §46.3.38.2De peculio cum domino actum est: is damnatus soluit.
However, in the proposed case, the action for theft will be available to me after a divorce, since it is in my interest that the intercepted money is not lost.\n\nAn action on the peculium was brought against the master, and being condemned, he paid.
et fideiussores pro seruo acceptos liberari respondit: eandem enim pecuniam in plures causas solui posse argumentum esse, quod, cum iudicatum solui satisdatum est et damnatus reus soluat, non solum actione iudicati, sed etiam ex stipulatu et ipse et fideiussores liberentur.
He replied that the guarantors accepted on behalf of the slave are also released; for proof that the same money can be paid to satisfy several liabilities is that when security is given for payment of the judgment and the condemned defendant pays, both he and his guarantors are released not only from the action on the judgment but also from the stipulation.
et magis simile esse, quod, cum possessor hereditatis existimans se heredem esse soluerit, heres non liberetur: tunc enim propterea id euenire, quod ille suo nomine indebitam pecuniam dando repetitionem eius haberet. §46.3.38.3Qui hominem promisit si statuliberum soluat, magis puto non esse exspectandam condicionem: sed et creditorem agere posse et illi condictionem competere.
And he said that this is more similar than the case where, when the possessor of an inheritance pays believing himself to be the heir, the heir is not released; for there, that happens for the reason that the possessor, by paying what is not due in his own name, has an action for its recovery.\n\nI rather think that if someone who promised a slave pays a conditionally free slave, the outcome of the condition is not to be awaited; but both the creditor can sue, and the debtor is entitled to a condictio.
quod si interim condicio defecerit, liberatur, perinde atque si quis pendente condicione soluit per errorem et antequam condiceret, condicio exstiterit.
But if in the meantime the condition fails, he is released, just as if someone, while a condition was pending, paid by mistake, and before he brought a condictio, the condition occurred.
illud nullo modo dici conueniet, si mortuo Sticho condicio deficiat, liberari debitorem, quamuis, si uiuente eo defecerit, liberaretur, quando isto casu nullo tempore perfecte hominem meum feceris: alioquin prope erit, ut etiam, si eum seruum, in quo usus fructus alienus est, mihi solueris isque usu fructu manente decesserit, ea solutione liberatus uidearis: quod nullo modo probandum est, sicuti si communem soluisses isque decessisset.
It will by no means be proper to say that if Stichus dies and then the condition fails, the debtor is released, although if it had failed while he was alive, he would be released, since in this case you have at no time made the slave completely mine. Otherwise, it would almost follow that if you paid me a slave in whom another has a usufruct, and he dies while the usufruct still remains, you would seem to be released by that payment; which is by no means to be approved, just as if you had paid a slave held in common and he had died.\n\nIf someone has become a guarantor for a returned person who, while he was absent on public business, was released from an action, and then a year has elapsed, is the guarantor released?
§46.3.38.4Si quis pro eo reuerso fideiusserit, qui, cum rei publicae causa abesset, actione qua liberatus sit, deinde annus praeterierit, an fideiussor liberetur? quod Iuliano non placebat, et quidem si cum fideiussore experiundi potestas non fuit: sed hoc casu in ipsum fideiussorem ex edicto actionem restitui debere, quemadmodum in eum fideiussorem, qui hominem promissum occidit.
Julian did not approve of this, especially if there was no opportunity of suing the guarantor; but he held that in this case, the action must be restored against the guarantor himself under the Edict, just as against a guarantor who has killed the promised slave.\n\nA person who had become guarantor for you to Titius gave a pledge for his own obligation; later, the same person appointed you as his heir.
§46.3.38.5Qui pro te apud Titium fideiusserat, pignus in suam obligationem dedit: post idem heredem te instituit. quamuis ex fideiussoria causa non tenearis, nihilo minus tamen pignus obligatum manebit.
Although you are not bound on the ground of the guarantee, nevertheless the pledge will remain bound.
at si idem alium fideiussorem dederit atque ita heredem te instituerit, rectius existimari ait sublata obligatione eius, pro quo fideiussum sit, eum quoque qui fideiusserit liberari.
But if the same person had given another guarantor and thus appointed you as his heir, he says it is more correctly held that since the obligation of the person for whom the guarantee was given is extinguished, the person who acted as guarantor is also released.