Alteri stipulari nemo potest

(a) The rule

"A contract may stipulate performance for the benefit of a third party, so that the third party acquires the right directly to demand performance." This is how the BGB (§ 328 I) introduces its title on contracts in favour of third parties.

¹ Cf. also Inst. H 9, 5. On this maxim, see, most recently Renato Quadrato, "Rappresentanza", in: ED. vol. 38, 1987, pp. 426 sqq. (proposing a new and very narrow construction of the crucial term "extraneus"; it did not, for instance, cover liberti and amici).

² Schmidlin, Rechtsregeln. pp. 70 sqq.

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17): "Alteri stipulari nemo potest, praeterquam si servus domino, filius patri stipuletur." The origin of this famous rule, which had such a lasting effect in the history of private law, has to be seen according to traditional opinion in the formalities required for a stipulation.^[158] A conceptio verborum of the above-mentioned type did not comply with the set form of question and answer, because, at least in the beginning, a stipulation had to contain the word "mihi", and it thus had to secure performance to the stipulator, not to Titius.^[159] However, the rule was not abandoned even at a time when the formalities were seen in a more liberal light by the jurists; on the contrary, it was probably only then that its implications for the freedom of the parties to adapt and vary their formal declarations were fully realized and that the rule was framed and formulated.^[160] Also, its application was not confined to stipulations but extended to all obligations: "Nee paciscendo nee legem dicendo nee stipulando quisquam alteri cavere potest."^[161]

(b) The interest requirement

Roman lawyers tried to rationalize the rule and they explained it on the basis that the stipulator did not have any actionable interest in the conclusion of a stipulatio alteri:.. inventae sunt enim huiusmodi obligationes ad hoc, ut unusquisque sibi adquirat quod sua interest: ceterum ut alii detur, nihil interest mea" (Ulp. D. 45, 1, 38, 17).^[162] These considerations may not be altogether convincing for a modern lawyer^[163]—some sort of interest must, typically, also exist in a stipulatio alteri, otherwise a sensible man would hardly enter into such an agreement. This in itself is no reason to reject the text as spurious. The same argument is documented in other texts;^[164] it relates to the procedural rule of omnis condemnatio pecuniaria.^[165] If every judgment had to be for a definite sum of money, then performance had to be capable of being evaluated in monetary terms.¹¹ That was possible only if every obligation involved an interest, the pecuniary value of which could be estimated.

i. e. to treat a stipulatio alteri as valid.¹⁶ Such an interest could arise out of the fact that the stipulator was liable to the third party for the performance of the promisor. An example of such a situation is provided by Ulp. D. 45, 1, 38, 20:

"Is, qui pupilli tutelam administrare coepcrat, cessit administratione contutori suo et stipulates est rem pupilli salvam fore, ait Marcellus posse defendi stipulationem valere: interest enim supulatoris fieri quod stipulates est, cum obligatus futurus esset pupillo, si aliter res cessent."

Here a tutor wanted to leave the entire administration of the ward's property to his co-tutor and asked him for a cautio rem pupilli salvam fore, that is, for a guarantee (in the form of a stipulation) that he would properly administer this property. As this stipulation had been concluded between the two tutors and provided the tutor cessans with an actio ex stipulatu against the tutor gerens, but imposed a duty on the latter to see to it that his administration of the ward's property would not prove to be detrimental, it was a contract in favour of a third party.¹⁷ However, both Marcellus and Ulpianus regarded the stipula­tion as valid. The first tutor, although he had ceased to act as a tutor,

¹ Cf.

^E Cf. e.g. the condictio certae rei: "Si paret Num Num Ao Ao tritici Africi optimi modios centum dare oportere, quanti ea res est, tantam pecuniam iudex Num Num Ao Ao condemnato, si non paret, absolvito."

^B In the case of certa pecunia (cf. the condictio certae pecuniae) condemnation was for that specific sum of money.

^B Cf. e.g. the actio empti: "Quod As As de No No hominem Stichum emit, quidquid ob earn rem Num Num Ao Ao dare facere oportet ex fide bona, eins iudex Num Num Ao Ao condemnato, si non paret, absolvito."

^B Cf. generally Medicus, Id quod interest; H. Honsell, Quod interest; and infra pp. 826 sq.

^B Cf. the general statement in Inst. Ill, 19, 20; C. 8, 38, 3 pr. (Diocl. et Max.) (see the interpretation by Max Kaser, "Zur Interessenbestimmung bei den sog. unechten Vertragen zugunsten Dritter", in: Festschrift.für Erwin Seidl (1975), pp. 82 sqq.).

Towards the ward the second tutor is in any event liable for maladministration under the actio tutelae. Normally the cautio would have been concluded between tutor and ward. It mainly served the function of providing a basis for suretyship stipulations. was still liable if the ward's affairs were badly administered.¹⁸ He had left the administration to his co-tutor suo periculo and thus had an interest in reducing this periculum by providing for himself a means of forcing the tutor gerens to carry out his obligations.¹⁹ Another example is discussed in Ulp. D. 45, 1, 38, 21 where the promisor of an insula facienda had asked a substitute to promise that he would carry out the building operations for the original stipulator. The (second) stipulation was valid because the stipulator was himself liable as promisor in the first stipulation.

(c) Origin of the rule

More examples could be cited.²⁰ In analysing them, one is driven to the conclusion that the "interest requirement" only states something obvious: the plaintiff can sue if he has a (financial) interest capable of being assessed by the judge.

^B Even though only in subsidio. On the liabilities of co-tutors, especially the relationship of tutor gerens and cessans, see Ernst Levy, "Die Haftung mehrerer Tutoren", (1916) 37 ZSS 14 sqq., 59 sqq.

® A different interpretation is given by Wesenberg, pp. 12 sqq. But see Max Kaser, "Die romische Eviktionshaftung nach Weiterverkauf', in: Sein und Werden im Recht, Festgabe?ir Ulrich von Lubtow i 1970). p. 491: Alejandro Guzman. Caucion tutelar en derecho romano i 1974). pp. 272 sqq.

² Cf. Kaser. Festschrift Seid!, pp. 75 sqq.: Apathy. (19761 93 ZSS 102 sqq.

³ Cf. e.g. supra, notes 12 and 13.

“ Hans Ankum./'Une nouvelle Hypothese sur l'origine de la regle Alteri dan stipulari nemo potest", in: Etudes offertes a Jean Macqueron (1970"). pp. 21 sqq.

³ Cf. Gai. III. 103: also Paul. D. 45. 1. 126. 2. See Ankum. Etudes Macqueron, pp. 25 sq.

²¹ That is. with regard to contracts for incertum dare or facere. But see Pap. D. 45. 1. 118. 2. where the alteri certum dari is regarded from the point of view of the stipulator as facere. i.e. an incertum.

provided he had an actionable interest.^[166] With the decline of the formulary procedure these distinctions were bound to become meaningless. Instead, however, of abolishing "alteri (dari) stipulari nemo potest", Justinian emphasized it as a general rule and finally eliminated the "dari".^[167] Yet, at the same time, by also generalizing the idea that the promisee had to be able to sue wherever there was an actionable interest, he emasculated it for all practical purposes.

2.