[ULPIANUS libro septimo disputationum. ] §46.7.13.prCum quaerebatur, si interposita iudicatum solui stipulatione, cum quis rem non defenderet, postea ex eremodicio sententiam esset passus, an ob rem iudicatam clausula committatur: dicebam unam clausulam in stipulatione iudicatum solui et ob rem non defensam et ob rem iudicatam in se habere: cum igitur iudicatum solui stipulatio una cludatur clausula, siue res iudicetur siue res non defendatur, merito quaeritur, si altera causa committatur, an ex altera rursum committi possit.
[ULPIANUS, Disputations, book 7.] When it was asked whether, after a security for the payment of the judgment had been interposed, if someone did not defend the case and afterwards suffered judgment by default, the clause on account of the matter being judged is activated: I used to say that one clause in the stipulation for the payment of the judgment contains within itself both that on account of the case undefended and that on account of the matter being judged. Since, therefore, the stipulation for the payment of the judgment is concluded by one clause, whether the matter is judged or the case is undefended, it is deservedly asked, if it is activated from one cause, whether it can be activated again from the other.
ecce enim si quis stipuletur: 'si nauis ex Asia uenerit, aut si Titius consul fuerit', constat, siue nauis prior uenerit siue Titius consul ante factus sit, committi stipulationem: sed ubi commissa est ex priore causa, ex altera, licet existat condicio, amplius non committitur: altera causa enim, non utraque inerat stipulationi.
For behold, if someone should stipulate: "if a ship comes from Asia, or if Titius becomes consul", it is clear that, whether the ship comes first or Titius is made consul first, the stipulation is activated; but when it has been activated from the prior cause, it is no longer activated from the other, even if the condition exists; for one cause, not both, was in the stipulation.
proinde uidendum, stipulatio ob rem non defensam utrum commissa est re non defensa an non prius creditur commissa, nisi ex stipulatione lis fuerit contestata? quod magis est: et ideo nec fideiussoribus uidetur statim dies cedere, ubi res coeperat non defendi.
Therefore, it must be considered whether the stipulation on account of the case undefended is activated by the fact that the case was undefended, or whether it is not believed to be activated before joinder of issue has been made under the stipulation? The latter is more correct; and therefore, the time is not deemed to begin to run immediately for the guarantors when the case began to be undefended.
proinde si forte lis finita fuerit, ad quam defensio erat necessaria, uel solutione uel transactione uel acceptilatione uel quo alio modo, consequenter placuit evanescere ob rem non defensam clausulam.
Consequently, if by chance the lawsuit for which defense was necessary has been ended, either by payment, or by compromise, or by formal release, or in any other way, it has accordingly been held that the clause on account of the case undefended vanishes.
§46.7.13.1Si fuero a fideiussore procuratoris stipulatus iudicatum solui quasi in rem acturus et postea in personam egero, uel alia actione acturus, aliam autem dictauero actionem, non committitur stipulatio, quia de alia actum uidetur, de alia stipulatio interposita.
If I have stipulated with the guarantor of an agent for the payment of the judgment, intending to bring an action in rem, and afterwards I bring an action in personam, or if, intending to bring one action, I declare another action, the stipulation is not activated, because the action seems to have been brought concerning one thing, while the stipulation was interposed concerning another.