restricted access 8. CONFIRMATION AND RATIFICATION
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BOOK FORTY-SIXICONFIRMATION 245 sued on the ground of nondefense and subsequently the issue be defended, another of the sureties can be sued on the count of the issue having been decided. And suppose that on the death of the promisor leaving two heirs, the one defends the issue, the other does not; the one who does not defend can be sued for nondefense, the one who does defend on the ground of the issue having been decided. For we do not believe that these two clauses are enforceable against one and the same person, and we say that the clause on the issue having been decided always prevails and that it alone becomes operative. CONFIRMATION AND RATIFICATION 1 PAPINIAN, Questions, book 28: When someone stipulates concerning ratification, then, although it is not he personally who is sued by the principal but another who cannot be brought to court, still, if he ratifies it, it is settled that the stipulation is operative, just as when a surety is sued or one of two promisors who is a partner [of the other]. 2 PAPINIAN, Replies, book 11: In the stipulation on ratification, the consideration is not the gain of the promisor or of the stipulator but what it will mean to the latter that what is done should be ratified. 3 PAPINIAN, Replies, book 12: When a minor under twenty-five, as creditor, wishes to recover money, an interposed procurator gives an undertaking of ratification to the debtor; restitutio in integrum having been granted, neither does the condictio indebiti lie nor does the stipulation become operative. The same holds if the minor ratifies the act of a false procurator. Hence, it should be undertaken, the mandate [to the procurator ] having already been given, "if he or his heir be granted restitutio in integrum or he to whom there pertains the issue in question, such-and-such money will be given." Even where there has been no intervening mandate, these words are more prudently added between the parties to the agreement to the general words on ratification; otherwise, if he does not agree and the minor creditor does not consent, an action should be granted. 1. A false procurator gave an undertaking on ratification, and his principal, judgment having gone against the procurator, appealed against the judge's decision; the prerequisite of the stipulation appeared to be lacking, since the defeated party had but resorted to a common refuge. But should a principal who had not ratified have demanded the money, the ratification stipulation would be operative in respect of that money which the principal accepted although the procurator received nothing. 4 SCAEVOLA, Questions, book 13: A procurator claimed fifty; should his principal claim one hundred, the sureties, who gave the undertaking on ratification, will be liable for fifty and for what it be worth deferring an action for fifty. 5 SCAEVOLA, Replies, book 5: He answered that ratification can be not only by words but by conduct; should the principal, approvingly, continue the proceedings which his procurator had commenced, the stipulation does not become enforceable. 6 HERMOGENIAN, Epitome of Law, book 1: When a tutor has been charged as untrustworthy , a defender who wishes to speak on his behalf will be obliged to give an undertaking that his principal will ratify the matter. 7 PAUL,Views, book 3: Suppose that one,unwitting that possession of property isbeing sought for him, dies, his heirs cannot ratify matters within the period of the claim. 8 VENULEIUS, Stipulations, book 15: A procurator brought the action for production and his opponent was absolved because he did not have'possession; when he does acquire possession of that thing, the principal sues him for production; Sabinus says that BOOK FORTY-SIX/CONFIRMATION 245 sued on the ground of nondefense and subsequently the issue be defended, another of the sureties can be sued on the count of the issue having been decided. And suppose that on the death of the promisor leaving two heirs, the one defends the issue, the other does not; the one who does not defend can be sued for nondefense, the one who does defend on the ground of the issue having been decided. For we do not believe that these two clauses are enforceable against one and the same person, and we say that the clause on the issue having been decided always prevails and that it alone becomes operative. 8 CONFIRMATION AND RATIFICATION 1 PAPINIAN, Questions, book 28: When someone stipulates concerning...


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