Vicissitudes of obligation and the identity of the res

Abstract

A Paul’s quaestio, transmitted in two passages of the Digest (D. 45.1.83.5 and D. 46.3.98.8), deals with the case of the freed slave who became slave again. According to the jurist, a stipulatio is inutilis if anyone stipulates for a sacred or a religious thing or for a public thing, or for a freeman. Nor will the stipulation remain in suspense, because the public thing may become private, the freeman may become a slave. So, conversely, although a thing may have been validly stipulated for originally, yet, if it afterwards falls under the class of any of the things before mentioned, without the fault of the promissor, the stipulation is extinguished. Such a stipulation, too, as the following, is void ab initio: “illum, cum servus esse coeperit, dare spondes?”. In conclusion if the stipulatio were once extinguished, no alteration of circumstances would renew it: “in perpetuum sublata obligatio restitui non potest” (D. 46.3.98.8).