The problem of the second chapter

This is practically all the information about the origin and content of the lex Aquilia with which we are provided by the Digest. A whole variety of questions remain open. Perhaps the most obvious one concerns the content of the second chapter.

"sic ut primum quidem caput de toto servo perempto, secundum de parte ejus nobiliore, puta animo corrupto, terrium autem de parte minus nobili, corpore scilicet laeso."^H

As it turned out, this view was wide off the mark,^{[4921] [4922] [4923] for the discovery (by Niebuhr) of the text of Gaius' Institutes in 1816lu finally terminated all speculation. "Capite secundo," we read in Gai. Ill, 215, "adversus stipulatorem qui pecuniam in fraudem stipulatoris acceptam fecerit, quanti ea res est, tanti actio constituitur." An adstipulator was a person whom a stipulator asked to act as a kind of trustee and to recover what he (the stipulator) was owed by the promisor.[4924] The adstipulator therefore took a promise of "idem" from the (first) stipulator's debtor. He was thus in a position to dispose over the claim and could, in particular, release the debtor from his obligation (by way of acceptilatio). Where he did so "in fraudem stipulatoris", he was liable under chapter two of the lex Aquilia to make good the loss.[4925] Since the adstipulator normally acted at the request of the principal stipulator, the actio mandati was, of course, available too; and it was in fact the advent of this more convenient remedy that made the older action fall into obsolescence.'3}

3.