Conditions annexed to contracts have the following difference from conditions annexed to testamentary dispositions and dispositions translative of dominion. Conditions annexed to contract are retroactive: the obligation determined by their fulfilment relates backward and dates from the date of the contract. Conditions annexed to legacy or to alienation are not retroactive: the obligation or ownership thereby conferred only dates from the fulfilment of the condition.

We have seen that conditions were excluded from Expensilatio or Literal contract: it was their admissibility in Stipulatio that made the latter, unlike Expensilatio, a generic or universal form of contract: a contract equally applicable whatever the object that the contractors desired to secure. Primitive jurisprudence only recognized stipulations whose object was a datio or conveyance of property; not stipulations whose object was a factio or nonfactio, some other kind of performance or forbearance. But when facere or non facere was allowed to form the Condition of an obligation whose object was a dare, that is, when the payment of a penal sum could be made contingent on the non-performance or performance of a certain act, it became possible to stipulate, virtually or indirectly at least, for factio or non-factio as well as for datio. Savigny, § 116, Ihering, Vangerow, § 93.

§ 100. As to the rights conferred or obligations imposed by a contract on third persons not parties to the contract Paulus lays down the following principle: Quaecunque gerimus, cum ex nostro contractu originem trahunt, nisi ex nostra persona obligationis initium sumant, inanem actum nostrum efficiunt: et ideo neque stipulari neque emere vendere contrahere, ut alter suo nomine recte. agat, possumus, Dig. 44, 7, 11, i. e. in every contract where the apparent contractors are the real contractors, i. e. are not agents but principals, the right created by the contract must primarily vest, if the contract is to be valid, in the promisee himself; and the obligation in the promisor himself. This rule is evidently not violated if the promisee associates to himself his heir, i. e. contracts for some right to himself and heir: Suae personae adjungere quis heredis personam potest, Dig. 45, 1, 38, 14: but it is violated if the promisee contracts for some right to vest exclusively in his heir, or, as expressed in this paragraph, for some performance post mortem suam. Such contracts accordingly were void, whether they belonged to the civil or the gentile code, § 158. This led to

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the introduction of an Adstipulator when a person wished to stipulate something exclusively for the benefit of his heir, § 117. When Justinian abrogated the rule and ordained that an act could be Contracted to be performed either before or after the death of either of the contractors, Cod. 4, 117, the Adstipulator became unnecessary.

The rule of Paulus would make a promise of payment to the promisee and a stranger void as to the latter, § 103.

The same rule applied to the passive obligation a contract imposed : the debtor created by a contract could not be in the first instance the heir of the promisor, § 158. One intelligible motive for prohibiting obligations from taking effect on the death of the promisor would be to prevent evasions of the testamentary laws restricting the powers of testation. A testator who wished to leave a legacy to a person who could not take under a will from want either of Capacitas or of passive Testamentifactio, or a legacy beyond the amount permitted by the lex Falcidia or some other law, would enter into a Stipulation, binding his heir to pay a certain sum after the death of the promisor. The promisee then could recover this sum not as legatee but as creditor under the stipulation. That such evasions were in fact attempted appears from Dig. 22, 3, 27. Ihering. Is this opening of a door to fraudulent evasions the evil that Gaius intends to express by 'Inelegance,' a somewhat unintelligible term? Justinian, however, abolished the distinctions recorded in this paragraph, and allowed the stipulation of an act to be performed either for the heir of the promisee, or by the heir of the promisor, Inst. 3, 19, 13.

§ 103. A slave or filiusfamilias who stipulated a payment to himself acquired an obligation for the master or paterfamilias. He could also stipulate directly a payment to the master or parent. Except in these relations, it was the rule that a man could not stipulate for payment to a third person. Payment, however, to a third party might be secured by a penal clause, stipulating, in default of performance, payment of a penal sum to the promisee, Inst. 3, 19, 19.

The rule of the Civil law that a Formal contract could only be concluded between principals-between persons covenanting in their own names, was an impediment in the way of commerce which was met, as we have already stated, by a double use of a Consensual contract, which will presently be examined, the contract of Agency (mandatum). An Agent or mandatary stipulated in his

own name with a third person, and then ceded his right of action to his principal; that is, made his principal his mandatary: the principal then sued and recovered on the stipulation as Cessionary of the action, that is, as mandatary of his mandatary. In the latest period the actual Cession of the action was unnecessary: the praetor allowed the principal to sue by an actio Utilis, i. e. an action whose formula contained a Fiction, with whose precise nature we are unacquainted, but perhaps to the effect that the principal was the universal successor of the agent. In respect of Formless contracts, or contracts governed by Jus Gentium, the institute of Agency was more completely recognized. If an Agent merely acted as emissary (nuncius) and instrument (minister) of his principal, that is, contracted in the name of his principal, the principal acquired an immediate right against the third contractor and incurred a direct obligation to him: he could sue him or be sued by him in an actio Directa-he was not driven to an actio Utilis or Fictitia. In this respect the distinction between Formal and Formless contracts may be thus expressed in Formal contracts the Civil law requires both elements of the Title or Disposition, the essential element (intention to create an obligation) and the symbolic element (the declaratory question or answer) to be acts of the same person in Formless contracts Gentile law allows these elements to be sundered; allows the essential part (intention) to be the act of one person, the Principal, and the declaratory part (the formless external manifestation of this intention) to be the act of another person, the Agent.

If then it was desired to contract for payment to a third person, it was only necessary that the contractor should not attempt to do as principal what he could only do as agent, or to do without Cession what could only be done by means of Cession. Even if he neglected these precautions it did not inevitably follow that his contract was inefficacious. Paulus, indeed, Dig. 44, 7, 11, lays down the principle which we have already, § 100, noticed: Every disposition in which a person contracts as principal but attempts to entitle a third person to sue as principal (i. e. attempts to invest a third person with the rights of an immediate creditor) is invalid and neither by formal contract of stipulation, nor by formless contract of purchase and sale, nor by any other contract in which I am principal can I invest a third person with a right to sue in his own name.' But this rule was not so important as at first sight it

might appear for if the third person by subsequent ratification made the contractor his negotiorum gestor, i. e. his representative or agent (procurator), the contract became valid. Savigny, Obligation, § 59. We have already mentioned, § 100, that in Justinian's legislation a contractor could contract for a payment to or by a third person, when that person was his own successor.

The controversy between the Sabinians and Proculeians is decided in favour of the latter by Justinian, who enacts that a stipulation for payment of a sum to the promisee and a stranger entitles the promisee to payment of half the sum and is void as to the remainder, Inst. 3, 19, 4. In a Formless contract the Sabinian doctrine still prevails, Dig. 18, 1, 64.

§ 109. The age of puberty, as we have seen, was 14 for males, 12 for females. Before this period the child was called impubes: up to the age of 7 he was called infans. In the interval between 7 and 14 he was described either as infantiae proximus or as pubertati proximus. According to some commentators the interval was equally divided between these appellations, so that from 7 to 10 a boy was infantiae proximus, and from 10 to 14 pubertati proximus. According to Savigny these names only covered the space of a year measured from each limit, so that from 7 to 8 a child was infanti proximus, from 13 to 14 puberi proximus, and from 8 to 13 without any distinctive appellation.

The principal peculiarity that results from the nature of verbal and literal contracts and distinguishes them from other conventions is, that other conventions are not legally valid unless the promisor be shown to get a quid pro quo, that is, unless an adequate consideration be proved: whereas verbal and literal contracts, securing by the solemnity of their formalities due deliberation on the part of the contractors, are valid in favour of the promisee without proof of consideration.

Although, however, the want of consideration did not absolutely invalidate a stipulation, yet it constituted a counterpoising right of the promisor which might be pleaded by the exceptio doli mali or non numeratae pecuniae. Si quis sine causa ab aliquo fuerit stipulatus, deinde ex ea stipulatione experiatur, exceptio utique doli mali ei nocebit. Licet enim eo tempore quo stipulabatur nihil dolo malo admiserit, tamen dicendum est eum, cum litem contestatur, dolo facere qui perseveret ex ea stipulatione petere, Dig. 44, 4, 2, 3. The absence of consideration renders an action on a stipulation liable to be

barred by a plea of fraudulent intention. For though originally the stipulation was not tainted with fraud, yet to sue on such a stipulation is fraudulent.' The exception of dolus malus was allowed by Marcus Aurelius (A.D. 169-176) to be pleaded in all actions of civil law. Sed et in strictis judiciis, ex rescripto divi Marci, opposita doli mali exceptione, compensatio inducebatur, Inst. 4, 6, 30. Even in actions of civil law, after the rescript of Marcus Aurelius, the plea of dolus malus forced the plaintiff to recognize any set-off to his claim.'

If instead of generally alleging fraud (Si in ea re nihil dolo malo Auli Agerii factum est neque fit), the plea alleged the particular fact of non-payment (exceptio in factum composita), it was called exceptio pecuniae non numeratae. Compare Gaius, 4 § 116: Si stipulatus sim a te pecuniam, tanquam credendi causa numeraturus, nec numeraverim .. placet per exceptionem doli mali te defendi debere, with Just. Inst. 4, 13, 2: Si quis, quasi credendi causa, pecuniam stipulatus fuerit, neque numeraverit. per exceptionem pecuniae non numeratae te defendi debere.

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An important peculiarity of these exceptions was that the burden of proof was not, as in other exceptions, on the defendant, but on the plaintiff. Si ex cautione tua, licet hypotheca data, conveniri coeperis, exceptione opposita seu doli seu non numeratae pecuniae, compellitur petitor probare, pecuniam tibi esse numeratam; quo non impleto absolutio sequetur, Cod. 4, 30, 3. If you are sued on your stipulation (or written admission) confirmed by a mortgage, the plea of fraud or money not received will force the claimant to prove that the money was lent, or you will be acquitted.' A rescript of Diocletian and Maximian (A.D. 286-305) expressly states that this plea was admissible in an action founded on stipulation. Si stipulatione interposita placita creditor non dederit, in factum esse dandam exceptionem convenit, Cod. 4, 30, 9. If, after a stipulation, the contemplated loan was not advanced by the promisee, this fact may be pleaded in an exception.'

It is clear that when these rules were established the nature of verbal and literal contracts was deeply modified: Formal contracts were abolished, so far as the rules extended, or transformed into real contracts, the obligation of the promisor depending on the performance of the promisee (re), that is, on the execution by the promisee of his part of the consideration, not on the solemnity of the spoken words (verbis) or written document (literis).