Novation

Novation implied the extinction of an existing obligation and its replacement with a new one. Ulpian (D. 46.2.1pr.) defines the novation as the “transforma­tion and conversion of an earlier debt into another obligation, whether civil or natural.” For instance, Caius could stipulate from Titius the payment of what Sempronius owes him: “Titius, do you promise to pay me whatever Sempronius owed me?” “I promise.”

The old obligation could arise from any kind of contractual or testamen­tary obligation, while the new one had to arise from a stipulation (later also a literal contract).

The novation often operated as a form of payment by changing the creditor. If Titius owes Caius, and Caius owes Sempronius, Caius can ask Titius to promise to pay Sempronius what Titius owes him. Thus, Caius can satisfy his debt to Sempronius by substituting Titius for himself. This novation by change of the creditor required the consent of the three parties. The novation by change of the debtor (expromissio), however, did not require the consent of

The law of obligations: contracts 187 the old debtor.

Under Justinian’s law, the intention to novate (animus novandi) became predominant. To produce a novation, Justinian demanded that the contracting parties expressly state their intention to novate; otherwise, the previous obli­gation would subsist, and the second one would be added to it (C.J. 8.41.8; Inst. 3.29.3a).

Adstipulatio

One of the most important applications of stipulations was as an accessory to another obligation. This could happen when a promisor of a previous stipulation made the same promise to a new stipulator: e.g., “Do you promise me what you promised Sempronius?” “Yes, I promise.” This obligation was called adstipulatio since an additional stipulator was added to an existing obligation. The adstipulator could stipulate for the same debt or less but never for more than the principal stipulator. The adstipulatio did not produce a novatory effect, probably because of the lack of an intention by any of the parties to novate (animus novandi).

Adstipulatio was mainly applied when a person wanted to assure that a payment would be made after his death. Thus, the adstipulator was like a trustee who might claim from the promisor what was owed to the principal stipulator. The adstipulator could release the promisor from his obligation by means of acceptilatio. With the rise of the contract of mandate, which could be applied with a similar purpose, and the development of some new remedies, the adstipulatio became obsolete and disappeared.

Adpromissio

Much more frequent and significant than the adstipulatio was the addition of a new promisor to an existing obligation, adpromissio. Adpromissio was a means to creating suretyship or personal securities by stipulation. Roman law knew three types of adpromissiones: the sponsio, the fidepromissio, and the fideiussio. These names derived from the Latin verb used in the form of the stipulation (Gaius 3.116).

Sponsio was the oldest and was confined to Roman citizens. Sponsio and fidepromissio, the latter available to noncitizens, were basically subject to the same rules. Both sponsio and fidepromissio could guarantee only debts created by means of a stipulation, and in both cases the liability of the guarantor was limited to two years and not transmissible to his heirs. The full validity of the adpromissio did not depend on the effectiveness of the principal stipulation. For instance, if the promisor in the principal stipulation was a woman acting without the permission of her tutor, the woman was free from obligation, but the guarantor was not (Gaius 3.119). Originally, the principal stipulation and

the adpromissio were concluded in one continuous and uninterrupted act. This requirement was abandoned in classical times, and it was even permitted to conclude the adpromissio in the absence of the principal debtor. The sponsio and fidepromissio disappeared at the beginning of the postclassical period.

The third form of surety, the fideiussio, was created at the end of the Republic or at the beginning of the Principate to improve the system of surety. Fideiussio was the only form that survived in Justinian’s time. Unlike the sponsio and the fidepromissio, the fideiussio was not restricted to principal obligations that arose from stipulations, and it had no expiry date. In Justinian’s time, fideiussio was supplemented with three privileges, some of them based on classical roots: (a) the surety became subsidiary in the sense that before bringing any action against the guarantors, the creditor first had to bring action against the principal debtor (beneficium excusionis); (b) the liability of the guarantors was limited by the debt resulting from the division of the principal debt (beneficium divisionis); and (c) the guarantor who had paid the principal debt could bring the same actions that the creditor could have brought against the principal and/or his guarantors (beneficium cedendarum actionum).