[IDEM libro uicensimo octauo quaestionum. ] §46.3.95.prStichum aut Pamphilum, utrum ego uelim, dare spondes?' altero mortuo qui uiuit solus petetur, nisi si mora facta sit in eo mortuo, quem petitor elegit: tunc enim perinde solus ille qui decessit praebetur, ac si solus in obligationem deductus fuisset.
[THE SAME, in the twenty-eighth book of Questions.] "Do you promise to give Stichus or Pamphilus, whichever I may wish?" When one of them dies, the one who survives is alone sued for, unless there was delay in respect of the deceased one whom the plaintiff had chosen: for in that case, the deceased alone is provided, just as if he alone had been brought into the obligation.
§46.3.95.1Quod si promissoris fuerit electio, defuncto altero qui superest aeque peti poterit.
But if the choice belonged to the promisor, even if one of them dies, the survivor can equally be sued for.
enimuero si facto debitoris alter sit mortuus, cum debitoris esset electio, quamuis interim non alius peti possit, quam qui solui etiam potest, neque defuncti offerri aestimatio potest, si forte longe fuit uilior, quoniam id pro petitore in poenam promissoris constitutum est, tamen, si et alter seruus postea sine culpa debitoris moriatur, nullo modo ex stipulatu agi poterit, cum illo in tempore, quo moriebatur, non commiserit stipulationem.
However, if one died by the act of the debtor, when the choice belonged to the debtor, although in the meantime no other can be sued for than the one who can also be delivered, and the valuation of the deceased cannot be offered if by chance it was far cheaper, because this was established for the benefit of the plaintiff as a penalty for the promisor; nevertheless, if the other slave also dies afterwards without the fault of the debtor, no action on the stipulation can be brought in any way, since at that time when he was dying, the debtor did not commit a breach of the stipulation.
sane quoniam impunita non debent esse admissa, doli actio non immerito desiderabitur: aliter quam in persona fideiussoris, qui promissum hominem interfecit, quia tenetur ex stipulatu actione fideiussor, quemadmodum tenebatur, si debitor sine herede decessisset.
Indeed, since wrongdoings ought not to go unpunished, an action for fraud will not unreasonably be desired: unlike in the person of a surety who has killed the promised slave, because the surety is held liable by the action on the stipulation, just as he would be held if the debtor had died without an heir.
§46.3.95.2Aditio hereditatis nonnumquam iure confundit obligationem, ueluti si creditor debitoris uel contra debitor creditoris adierit hereditatem.
The acceptance of an inheritance sometimes legally merges an obligation, as for example if a creditor accepts the inheritance of his debtor, or conversely, a debtor accepts that of his creditor.
aliquando pro solutione cedit, si forte creditor, qui pupillo sine tutoris auctoritate nummos crediderat, heres ei extitit: non enim quanto locupletior pupillus factus est, consequeretur, sed in solidum creditum suum ex hereditate retinet.
Sometimes it operates in place of payment, as for instance if a creditor, who had lent money to a pupillus without the authority of his tutor, becomes his heir; for he does not obtain merely the amount by which the pupillus was made richer, but retains his claim in full out of the inheritance.
aliquando euenit, ut inanis obligatio aditione hereditatis confirmetur.
Sometimes it happens that an ineffective obligation is confirmed by the acceptance of an inheritance.
nam si heres, qui restituerit ex Trebelliano hereditatem, fideicommissario heres exstiterit, uel mulier, quae pro Titio intercesserat, eidem heres extiterit, incipit obligatio ciuilis propter hereditatem eius, qui iure tenebatur, auxilium exceptionis amittere: etenim inconditum est subuenire sexui mulieris, quae suo nomine periclitetur.
For if an heir, who has restored an inheritance under the Trebellian senatusconsultum, becomes the heir of the fideicommissary, or if a woman who had intervened on behalf of Titius becomes his heir, the civil obligation, on account of the inheritance of him who was legally bound, begins to lose the benefit of the exception: for indeed it is unreasonable to rescue the sex of a woman who is endangered in her own name.
§46.3.95.3Quod uolgo iactatur fideiussorem, qui debitori heres extitit, ex causa fideiussionis liberari, totiens uerum est, quotiens rei plenior promittendi obligatio inuenitur.
What is commonly asserted, that a surety who becomes the heir of the debtor is released from the cause of the suretyship, is true only as often as the obligation of the principal debtor is found to be more complete.
nam si reus dumtaxat fuit obligatus, fideiussor liberabitur.
For if only the principal debtor was bound, the surety will be released.
e contrario non potest dici non tolli fideiussoris obligationem, si debitor propriam et personalem habuit defensionem: nam si minori uiginti quinque annis bonae fidei pecuniam credidit isque nummos acceptos perdidit et intra tempora in integrum restitutionis decessit herede fideiussore, difficile est dicere causam iuris honorarii, quae potuit auxilio minori esse, retinere fideiussoris obligationem, quae principalis fuit et cui fideiussoris accessit sine contemplatione iuris praetorii.
On the contrary, it cannot be said that the surety's obligation is not extinguished if the debtor had a proper and personal defense: for if one lent money in good faith to a minor under twenty-five years of age, and he lost the money received and died within the time for restitution in integrum, leaving the surety as his heir, it is difficult to say that the ground of honorary law, which could have been of assistance to the minor, maintains the obligation of the surety, which was the principal one and to which that of the surety acceded without contemplation of the praetorian law.
auxilium igitur restitutionis fideiussori, qui adulescenti heres extitit, intra constitutum tempus saluum erit.
Therefore, the benefit of restitution will be preserved for the surety who became the heir to the young man, within the established time.
§46.3.95.4Naturalis obligatio ut pecuniae numeratione, ita iusto pacto uel iureiurando ipso iure tollitur, quod uinculum aequitatis, quo solo sustinebatur, conuentionis aequitate dissoluitur: ideoque fideiussor, quem pupillus dedit, ex istis causis liberari dicitur.
A natural obligation is extinguished by operation of law by a lawful agreement or by an oath, just as it is by the payment of money, because the bond of equity, by which alone it was sustained, is dissolved by the equity of the agreement: and therefore a surety given by a pupillus is said to be released for these reasons.