Strategies to evade the restriction

Furthermore, the awkward problem of the lack of interest could easily be avoided by the parties; they simply had to add a stipulatio poenae and to make forfeiture of the penalty dependent on non-performance by the promisor towards the third party: "ergo si quis stipuletur Titio dari, nihil agit, sed si addiderit de poena 'nisi dederis, tot aureos dare spondes?' tunc committitur stipulatio" (Inst.

"[P]lane si velim hoc facere, poenam sripulari conveniet, ut, si ita factum non sit, ut comprehensum est, committetur stipulatio etiam ei, cuius nihil interest: poenam enim cum stipulatur quis, non illud inspicitur, quid intersit, sed quae sit quantitas quaeque condicio stipulationis" (Ulp. D. 45, 1, 38, 17).

In this way, a (non-genuine) contract in favour of a third party could be made indirectly enforceable. The penalty clause put the promisor under some pressure to honour his promise and, thus, the practical effects of the "alteri stipulari nemo potest" rule were less dramatic than would appear at first glance.^[169] Also, the parties could avail themselves of the institution of a solutionis causa adiectus.^{[170] [171] [172] While a promise could not be made in favour of Titius, it could be made in favour of either me or Titius. A stipulation of the type "mihi aut Titio dari spondesne?" was valid; although, of course, no right to claim payment was being conferred on Titius, he was entitled to receive payment: "Titius nee petere nee novare nee acceptum facere potest, tantumque ei solvi potest" (Paul. D.}

3.