3. PERFORMANCES AND RELEASES
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216 BOOK FORTY-SIX/PERFORMANCES that other to stipulate as a gift or as conducting affairs for the son or slave; in the latter case, an action on mandate is acquired for the peculium. 1. There is no room for doubt that the agnate of a lunatic or the curator of a spendthrift has the right to novate if it be to the lunatic's or spendthrift's advantage. 2. Above all, we should be aware that nothing prevents several obligations being novated by one stipulation; for instance, we stipulate: "Do you solemnly promise to give what Titius and Seius ought to give me?" For though each was separately under obligation, both are released by virtue of the novation, since the obligation of each merges in the person from whom we now stipulate. PERFORMANCES AND RELEASES 1 ULPIAN,Sabinus, book 43: Whenever a debtor under several heads pays one debt, it is in his choice which debt he wishes to discharge and the one he names will be discharged ; for we are able to state terms on what we pay. But every time that we do not specify which is being paid, it is the recipient who may elect to which debt he will allot it, provided that he effects a discharge for that for which he would himself be discharged if he were in debt and would be exonerated from the debt; in short, a debt which is not the object of dispute or one for which someone had gone surety for another or one the date for payment of which has not yet arrived; for it has appeared most equitable that the creditor should administer the debtor's affair as he would his own. The creditor, therefore, is allowed to opt which debt is paid, so long as he decides as he would in his own concern, and to decide as in the present state of affairs, that is, as soon as the payment is made. 2 FLORENTINUS, Institutes, book 8: While this happens in the conduct of the matter, the creditor is free not to accept [the money] or not to grant to the debtor his wish over other [debts] in respect of what was paid under a different head. 3 ULPIAN,Sabinus, book 43: But it is not allowed later. This brings it about that he is seen always to have to ascribe it to the greater debt, and so he decides on his own debt. 1. If it should chance that neither says anything, the payment will be deemed, where there are debts with a time for payment, to be of that one for which the time has fallen due, 4 POMPONIUS, Quintus Mucius, book 13: and, further, what I owe on my own account rather than what I owe as another's surety, and rather a debt with a penalty clause than one without, also a debt which I owe with security rather than an unsecured debt. 5 ULPIAN, Sabinus, book 43: Among debts presently due, it is settled that whenever it is unclear which is being paid, the payment is attributed to the more onerous and, if none is more onerous, that is, if all are similar, the longest standing. A debt is regarded as more onerous which is due with security rather than one which is unsecured . 1. If a person give two sureties, he can pay in such a way that he releases one of them. 2. Our Emperor Antoninus with his deified father gave a rescript that when the creditor, having sold the pledges, calls in the money, if there be interest due and other interest which is not due, what is in respect of interest goes to both types, that due and that which is not presently due. Suppose that some interest is due on a stipulation and other interest due naturally on a simple agreement; if the amount of 216 BOOK FORTY-SIX/PERFORMANCES that other to stipulate as a gift or as conducting affairs for the son or slave; in the latter case, an action on mandate is acquired for the peculium. 1. There is no room for doubt that the agnate of a lunatic or the curator of a spendthrift has the right to novate if it be to the lunatic's or spendthrift's advantage. 2. Above all, we should be aware that nothing prevents several obligations being novated by one stipulation; for instance, we stipulate: "Do you solemnly promise to give what Titius and...


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