5 Another circumstance by which a stipulation may be avoided is want of
correspondence between question and answer, as where a man stipulates
from you for payment of ten aurei, and you promise five, or vice versa;
or where his question is unconditional, your answer conditional, or vice
versa, provided only that in this latter case the difference is express
and clear; that is to say, if he stipulates for payment on fulfilment
of a condition, or on some determinate future day, and you answer: 'I.
promise to pay today,' the contract is void; but if you merely answer:
'I promise,' you are held by this laconic reply to have undertaken
payment on the day, or subject to the condition specified; for it is not
essential that every word used by the stipulator should be repeated in
the answer of the promise.
6 Again, no valid stipulation can be made between two persons of whom
one is in the power of the other. A slave indeed cannot be under an
obligation to either his master or anybody else: but children in power
can be bound in favour of any one except their own paterfamilias.
7 The dumb, of course, cannot either stipulate or promise, nor can the
deaf, for the promisee in stipulation must hear the answer, and the
promisor must hear the question; and this makes it clear that we are
speaking of persons only who are stone deaf, not of those who (as it is
said) are hard of hearing.
8 A lunatic cannot enter into any contract at all, because he does not
understand what he is doing.
9 On the other hand a pupil can enter into any contract, provided that
he has his guardian's authority, when necessary, as it is for incurring
an obligation, though not for imposing an obligation on another person.
10 This concession of legal capacity of disposition is manifestly
reasonable in respect of children who have acquired to some
understanding, for children below the age of seven years, or who have
just passed that age, resemble lunatics in want of intelligence. Those,
however, who have just completed their seventh year are permitted, by
a beneficent interpretation of the law, in order to promote their
interests, to have the same capacity as those approaching the age of
puberty; but a child below the latter age, who is in paternal power,
cannot bind himself even with his father's sanction.
11 An impossible condition is one which, according to the course of
nature, cannot be fulfilled, as, for instance, if one says: 'Do
you promise to give if I. touch the sky with my finger?' But if the
stipulation runs: 'Do you promise to give if I do not touch the sky with
my finger?' it is considered unconditional, and accordingly can be sued
upon at once.
Public-domain text, read in full here on John Shaqi.
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