2. NOVATIONS AND DELEGATIONS
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BOOK FORTY-SIXINOVATIONS 211 71 PAUL,Questions, book 4:Granius Antoninus was mandator to Aurelius Palma on behalf of Julius [Junius] Pollio and Julius Rufus in respect of money so lent to them that both were liable for the same thing. The estate of Julius passed to the imperial treasury which also became successor to the creditor. The mandator claimed that he was released by right of merger since the treasury was heir to both creditor and debtor. And if, indeed, there were only one debtor, I would not have doubted that like a surety, the mandator also would be released. For although a mandator is not released when the principal debtor is brought to court proceedings, nevertheless, when the creditor succeeds to his debtor, a mandator is also released, as though the obligation is extinguished by right of satisfaction or because he cannot be mandator both to and for the same person. But when there are two debtors and the creditor is heir to one of them, there is good ground for doubt whether the other debtor is also released, as though the money has been paid or only a person exempt by the merger of the obligation . In my view, a person becomes exempt on the acceptance of the inheritance by the merger of obligations, and backers of that person are also released because they cannot be under obligation both to and for the same individual; they could not be so from the outset, and they do not remain so. And so one of two debtors of the same sum is not released, nor, through him, is his surety or mandator. Of course, since he can proceed by the action on mandate against even the creditor, he will be given the defense of bad faith if proceedings are initiated against himself; but the creditor can take action against either debtor, in full if they were not partners or for a share if they were partners ; I think that it follows that the debtor is not released by the merger of the obligation . 1. Let us suppose that one of the promissory debtors obtains an agreement that no claim will be made against him, and then the mandator pays [the creditor]; he can bring the action on mandate even against the beneficiary of the pact; for the creditor 's agreement does not remove another man's right of action. 2. The accepted view is that the mandator is liable even if he gives a mandate for the loan of money to a creditor who charges interest. 72 GAIUS,Verbal Obligations, book 3: Suppose that a surety becomes bound under the condition, "if the ship shall have come from Asia," and that I took him as surety in such wise that he should be liable only for the period of his life; suppose also that while the condition was pending, the surety was formally released and that he died, the condition still pending; I can sue the debtor forthwith because the realization of a condition cannot impose an obligation on a dead man or confirm the formal release. 73 PAUL,Edict, book 76: When a procurator was bringing an action in rem, he gave an undertaking that his principal would ratify the matter. After he had been unsuccessful , his principal returned and took proceedings over the same issue; the defendant, being in possession of the thing and unwilling to return it, was accordingly cast in a large sum; sureties are no longer liable; for there cannot be imputed to sureties what he paid up in respect of his own penalty. NOVATIONS AND DELEGATIONS 1 ULPIAN,Sabinus, book 46: Novation is the transformation and metamorphosis of an earlier debt into another obligation, whether civil or natural. This happens when, from the preceding cause, a new [obligation] is so constituted that the former one is destroyed. For novation derives its designation from novelty and new obligation . 1. It matters not which [obligation]comes first, natural, civil, or praetorian nor whether it be verbal, real, or consensual; whatever the original obligation, it can be verbally novated, provided that the subsequent obligation has effect at civil law or naturally, as when a pupillus promises without his tutor's authority. BOOK FORTY-SIX/NOVATIONS 211 71 PAUL, Questions, book 4: Granius Antoninus was mandator to Aurelius Palma on behalf of Julius [Junius] Pollio and Julius Rufus in respect of money so lent to them that both were liable for the same thing. The estate of...


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