The limitations of sponsio

Sponsio could, however, guarantee no debts except those which had themselves been created by way of a stipulation.^[633] If another obligation fas, for example, one arising from a consensual contract of sale) was to be secured, a novatio had to take place first, in order to recast it in the form of a stipulation.

Originally, both the stipulation that was to be secured and the sponsio itself had to be concluded in one uninterrupted act. This requirement of "unitas actus" did not, however, imply that both stipulations were drawn together into one act, where the creditor first asked the debtor and then the surety ("Sei, decern mihi dari spondes? Maevi, idem dari spondes?") before both gave their answer, "spondeo".^[634] Rather, both stipulations were kept separate (so that the main debt—"Sei, decern mihi dari spondes?" "Spondeo"—was created before the promise to stand surety was made); only, the one had to follow the other immediately. But this requirement was abandoned by the Proculians; they allowed sponsiones that had been concluded subsequently and in the absence of the main debtor.^[635] This view, of course, entailed a change in the standard formula used for the purpose of sponsio. "Idem dari spondes?" was hardly the appropriate question where what was being referred to had taken place some months before. The stipulator had to be more precise as to what he wanted the surety to guarantee: "Quod Seius mihi dare spopondit dari spondes?" or, for instance: "Decern, quae Seius mihi debet, dari spondes?" These, however, were exactly the forms which the parties would also have had to use for the purposes of a novatio. Thus intricate problems of interpretation could arise.^[636]

A surety binds himself to be responsible for the fulfilment of somebody else's obligation.

Seeing that a creditor who had exacted more than his rateable part from a sponsor became liable to manus iniectio himself,^[640] there no longer seems to have been any need for it. The situation was different in the provinces, because the lex Furia (in contrast to the lex Appuleia) applied in Italy only.^[641]

But how could the sureties know what their share was? It was often only the creditor (and probably also the debtor) who knew the number of sureties securing a particular debt. A lex Cicereia therefore required the creditor to announce publicly and in advance for which obligation he was about to secure himself and how many sureties he was going to take.^[642]lfhe failed to give this notice, the sureties could within 30 days ask for a declaratory judgment (praeiudicium) to determine this point. If it was found that no proper notice had indeed been given, they were discharged.

One can well imagine that all these provisions made the sponsio increasingly cumbersome and unattractive to the creditor. A further point was that the liability of a sponsor did not descend to his heirs;^[643] all the primitive obligations had been (passively) intransmissible, and in the case of sponsio this might have remained so as a result of its (originally) sacral nature.^[644] "As if this were not enough'¹,^[645] the lex Furia also limited the liability of the sponsor himself to two years. After the lapse of this time, he automatically became free.

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