1. VERBAL CONTRACTS
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BOOK FORTY-FIVE 1 VERBAL CONTRACTS 1 ULPIAN, Sabinus,book 48: A stipulation can only be effected when both parties can speak, and therefore neither a mute nor a deaf person nor an infans can contract a stipulation; nor, indeed, can someone who is not present, since they should both be able to hear. If, therefore, such a person wishes to take a stipulation, he does so through a slave who is present and acquires an action on a stipulation. Also if someone wishes to be bound by an obligation, let him order it, and he will be bound in respect of the order. 1. When someone who is present asks a question but leaves before a reply is made to him, he makes an ineffective stipulation; if, however, he is present and asks, then leaves, and the reply is made to him on his return, he creates an obligation; for the interval between does not vitiate the obligation. 2. If a man asks, "will you give," and the other replies, "why not," he will certainly be in the position of being bound, but not if he has nodded assent without speaking. For it is a matter not only of civil but also of natural law that a man who nods assent in this way is not bound; and for that reason it is right to say that a guarantor on his behalf is equally not bound. 3. If someone who is asked without qualification replies, "if such and such happens, I shall give," it is clear that he is not bound; or if he is asked, "within five days of the Kalends," and replies, "I shall give on the Ides," it is equally clear that he is not bound; for he did not reply in the same terms as the question. And contrariwise, if he was asked conditionally and replied unconditionally, it must be said that he is not bound. When he adds anything to the obligation or subtracts from it, it is always agreed that the obligation is vitiated, unless the stipulator immediately approves the variation in the reply; for in that case another stipulation seems to have been contracted. 4. If, when I stipulate, "ten," you reply, "twenty," it is clear that an obligation has been made only for ten. Conversely, also, if I ask for "twenty" and you reply, "ten," an obligation will only have been made for ten. For granted that the sum ought to be consistent , yet it is absolutely obvious that ten is part of twenty. 5. But if, when I stipulate Pamphilus, you promise Pamphilus and Stichus, I think that the addition of Stichus should be regarded as superfluous. For if there are as many stipulations as there are objects stipulated, there are, in a manner of speaking, two stipulations: one effective, the other ineffective; and the effective one is not vitiated by this ineffective stipulation . 6. It makes no difference whether the reply is made in the same language or in another. For instance, if a man asks in Latin but receives a reply in Greek, as long as BOOK FORTY-FIVE 1 VERBAL CONTRACTS 1 ULPIAN, Sabinus, book 48: A stipulation can only be effected when both parties can speak, and therefore neither a mute nor a deaf person nor an infans can contract a stipulation; nor, indeed, can someone who is not present, since they should both be able to hear. If, therefore, such a person wishes to take a stipulation, he does so through a slave who is present and acquires an action on a stipulation. Also if someone wishes to be bound by an obligation, let him order it, and he will be bound in respect of the order. 1. When someone who is present asks a question but leaves before a reply is made to him, he makes an ineffective stipulation; if, however, he is present and asks, then leaves, and the reply is made to him on his return, he creates an obligation; for the interval between does not vitiate the obligation. 2. Ifa man asks, "will you give," and the other replies, "why not," he will certainly be in the position of being bound, but not if he has nodded assent without speaking. For it is a matter not only of civil but also of natural law that a man who nods assent in this way is not bound; and for that reason it is right to say that a guarantor on his behalf...