2 Precisely the same principles applies where a man stipulates for the
delivery of a thing which is sacred or religious, but which he thought
was a subject of human ownership, or of a thing which is public, that is
to say, devoted in perpetuity to the use and enjoyment of the people
at large, like a forum or theatre, or of a free man whom he thought a
slave, or of a thing which he is incapable of owning, or which is
his own already. And the fact that a thing which is public may
become private property, that a free man may become a slave, that the
stipulator may become capable of owning such and such a thing, or that
such and such a thing may cease to belong to him, will not avail to
merely suspend the force of the stipulation in these cases, but it is
void from the outset. Conversely, a stipulation which originally
was perfectly good may be avoided by the thing, which is its object,
acquiring any of the characters just specified through no fault of the
promisor. And a stipulation, such as 'do you promise to convey Lucius
Titius when he shall be a slave' and others like it, are also void from
the beginning; for objects which by their very nature cannot be owned by
man cannot either in any way be made the object of an obligation.
3 If one man promises that another shall convey, or do so and so, as,
for instance, that Titius shall give five aurei, he will not be bound,
though he will if he promises to get Titius to give them.
4 If a man stipulates for conveyance to, or performance in favour of,
another person who is not his paterfamilias, the contract is void;
though of course performance to a third person may be bargained for (as
in the stipulation 'do you promise to give to me or to Seius?'); where,
though the obligation is created in favour of the stipulator only,
payment may still be lawfully made to Seius, even against the
stipulator's will, the result of which, if it is done, being that the
promisor is entirely released from his obligation, while the stipulator
can sue Seius by the action of agency. If a man stipulates for payment
of ten aurei to himself and another who is not his paterfamilias, the
contract will be good, though there has been much doubt whether in such
a case the stipulator can sue for the whole sum agreed upon, or only
half; the law is now settled in favour of the smaller sum. If you
stipulate for performance in favour of one in your power, all benefit
under the contract is taken by yourself, for your words are as the words
of your son, as his words are as yours, in all cases in which he is
merely an instrument of acquisition for you.
Public-domain text, read in full here on John Shaqi.
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