CASE 117: Acquiring a Debt
D. 45.1.38.17 (Ulpianus libro quadragensimo nono ad Sabinum)
Alteri stipulari nemo potest, praeterquam si servus domino, filius patri stipuletur: inventae sunt enim huiusmodi obligationes ad hoc, ut unusquisque sibi adquirat quod sua interest: ceterum ut alii detur, nihil interest mea....
(Ulpian in the forty-ninth book on Sabinus)
No one can make a stipulation to the benefit of someone else except where a slave makes a stipulation on behalf of his master, or a son-in-power on behalf of his pater (familias). Obligations of this kind were devised so that each man should acquire for himself what is of benefit to him; but it is of no benefit to me that something be given to another person
1. Stipulation to the Benefit of Third Parties.
A stipulation is a formal oral contract in which one party, the stipulator, puts a question (“Do you promise to pay me 50?”), and the other party, the promissor, responds (“I promise”). Such a promise is legally binding because it accords with the formal requirements for this contract (see Gaius, Inst. 3.92-109). Ordinarily, however, a stipulation in favor of a third party (“Do you promise to pay 50 to Titius?”) is entirely void, meaning that neither Titius nor the stipulator can sue if the promissor fails to pay. Why is this so, do you think? However, as this Case indicates, children-in-power and slaves can make binding stipulations in favor of a pater familias (“Do you promise to pay 50 to my father?”); the pater can then sue to enforce the promise. Does this follow logically from the more general right to acquire through a child or slave? Is the knowledge of the pater apparently required?2. Nobody Turns Down Free Money.
Can a son stipulate to his fathers benefit even if his father forbids this? The answer is yes; see Julian, D. 45.1.62 (a slave). Is this rule problematic? Are there persons from whom you would be unwilling to receive gifts or the promise of gifts, even indirectly? If a son entered into a contract, such as a sale, giving rights and duties to both parties, the father could enforce the rights only if he was willing to fulfill the duties; see Paul, D. 21.1.57 pr. (of a slave). Does this suggest some dangers with unwanted contractual “entanglements”?3. A Disabled Pater Familias. Since a stipulation is an oral contract, a pater familias cannot conclude one if he is mentally or physically disabled, for instance, if he is insane or deaf. The solution was to use his son or slave to make the stipulation (Gaius, Inst. 3.105-106; Ulpian, D. 27.8.1.15, 45.1.1 pr.).
4. Can a Son Also Sue in His Own Name? Ulpian (D. 5.1.18.1) discusses the issue. Basically, for situations where the father was entitled to sue as a result of his son's act, the son could sue in his own name only if, for some reason, the father was unavailable (e.g., “if the father happens to be in the provinces”). See also Paul, D. 44.7.9, who lists a small number of exceptions.
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