[SCAEUOLA libro singulari quaestionum publice tractatarum. ] §46.3.93.prSi duo rei sint stipulandi et alter alterum heredem scripsit, uidendum, an confundatur obligatio.
[SCAEVOLA, in his single book of Questions Publicly Treated.] If there are two joint creditors and one has appointed the other as heir, we must see whether the obligation is merged.
placet non confundi.
The accepted opinion is that it is not merged.
quo bonum est hoc dicere? quod, si intendat dari sibi oportere, uel ideo dari oportet ipsi, quod heres exstitit, uel ideo, quod proprio nomine ei deberetur.
To what advantage is it to say this? Because, if he should claim that something ought to be given to him, it is either because he has become heir that it ought to be given to him, or because it was owed to him in his own name.
atquin magna est huius rei differentia: nam si alter ex reis pacti conuenti temporali exceptione summoueri poterit, intererit, is qui heres exstitit utrumne suo nomine an hereditario experiatur, ut ita possis animaduertere, exceptioni locus sit nec ne.
But there is a great difference in this matter; for if one of the joint creditors can be barred by a temporary plea of an agreement, it will be of importance whether the one who has become heir sues in his own name or in the name of the estate, so that in this way you can perceive whether there is room for the plea or not.
§46.3.93.1Item si duo rei sint promittendi et alter alterum heredem scripsit, confunditur obligatio.
Likewise, if there are two joint debtors and one has appointed the other as heir, the obligation is merged.
§46.3.93.2Sed et si reus heredem fideiussorem scripserit, confunditur obligatio.
But also if the principal debtor has appointed the surety as heir, the obligation is merged.
et quasi generale quid retinendum est, ut, ubi ei obligationi, quae sequellae locum optinet, principalis accedit, confusa sit obligatio: quotiens duae sint principales, altera alteri potius adicitur ad actionem, quam confusionem parere.
And it should be held as a general rule, so to speak, that where a principal obligation is joined to an obligation which holds the position of an accessory, the obligation is merged; but whenever there are two principal obligations, one is rather added to the other for the purpose of action, than that they produce a merger.
§46.3.93.3Quid ergo, si fideiussor reum heredem scripserit? confundetur obligatio secundum Sabini sententiam, licet Proculus dissentiat.
What then if the surety has appointed the principal debtor as heir? The obligation will be merged according to the opinion of Sabinus, although Proculus dissents.