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[001] or replies in a way which does not correspond with the question, as where one
[002] stipulates to be given ten and the other promises five, or one stipulates unconditionally
[003] and the other promises conditionally.36 37<It will also be ineffective if one
[004] stipulates as follows: ‘Do you promise to pay if a ship arrives from Asia today?’,
[005] for this is preposterously framed. Nevertheless, though it is preposterous, it is not
[006] to be rejected.>38 39Nor will a stipulation be valid if an impossible condition is
[007] added, the fulfillment of which nature makes impossible, as ‘Do you promise to
[008] pay if I touch the sky with my finger?’ But if it is put in this way, ‘If I do not
[009] touch the sky with my finger,’ the stipulation will then be valid, because it is
[010] unconditional and can be sued upon at once.40

The judicial stipulation.

[012] 41A stipulation may be judicial or conventional: judicial, made by order of the
[013] judge or praetor; conventional, arising from the agreement of the parties, not by
[014] direction of the judge or praetor, of which there are as many kinds almost as there
[015] are things about which men may conclude agreements.42 With all these matters
[016] the king's court does not meddle,43 save occasionally as a matter of grace.

If several things are made the object of a stipulation.

[018] 44If several things are included in a stipulation and the promisor simply answers
[019] ‘I promise to give,’ he is liable for them all. If he promises to give only one, or some,
[020] an obligation is contracted for those comprised in his answer, for of the several
[021] stipulations one or some are taken to be completed; when there are several matters
[022] a reply ought to be made to each.45

Who cannot stipulate.

[024] 46Finally we must consider those who can neither stipulate nor promise, that we
[025] may know those who may enter into a stipulation. 47It is clear that one who is
[026] dumb can neither stipulate nor promise, since he cannot speak or utter the words
[027] appropriate to a stipulation. The same is true of a deaf mute, for it is essential that
[028] the stipulator hear the words of the promisor and the promisor those of the
[029] stipulator,48 unless one says that they may enter into a stipulation by a nod or a
[030] writing.49 50What we have said applies not to one who is hard of hearing but to
[031] him who is stone-deaf.51 That a stipulation and obligation may be created by a
[032] writing is obvious, because 52if it is written in an instrument that a person has
[033] promised, it is treated exactly as if an answer had been made to some preceding
[034] question.53 54A lunatic cannot stipulate or conduct any transaction because he does
[035] not understand what he is doing. Nor can an infant or one just out of infancy (who
[036] does not greatly differ from a lunatic)55 unless what is done is to his advantage and
[037] done with the authority of his tutor.56


37. Supra i, 384

37-38. Inst. 3.19.14; G’terbock, 143

39-40. Inst. 3.19.11; supra 71

41. Br. and Azo, 152

41-42. Inst. 3.18. pr., 1-3

43. Glanv. x, 8, 18; supra 109

44. Br. and Azo, 152-3

44-45. Inst. 3.19.18

46. Br. and Azo, 153-4

47-48. Inst. 3.19.7; supra 52, infra iv, 178, 309

49. C. 6.22.10

50-51. Inst. 3.19.7

52-53. Inst. 3.19.17

54-55. Inst. 3.19.8-10

56. Inst. 1.21. pr.; supra 52, 56

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