!!Экзамен зачет 2023 год / The Law of Obligations

regarded as one of the most original thinkers among the Roman lawyers). He drew a distinction according to whether the penalty clauses in question contained a reference to a specific date up to which performance had to have been made or not. To take a compromissum between Gaius and Seius as an example, the promise might have been something like: "Si quid adversus sententiam arbitri factum erit sive quid ita factum non erit, centum dari spondes?". "Spondeo." The arbiter might then have decided that the slave, Pamphilus, had to be given to Seius; just as well he might have requested Gaius more specifically to hand the slave over before the tenth of October. In the first case it had to be decided when the penalty was exactable. In Celsus' view, performance had to be rendered within "modicum tempus"; accordingly, forfeiture occurred after the lapse of whatever time was deemed to be "modicum" under the circumstances. However, even when Pamphilus had been given later on (that is, after the lapse of "modicum tempus" and after forfeiture of the penalty), that was still in accordance with a literal interpretation of the compromissum: Gaius had promised to act according to the award of the arbiter; this sententia had been to hand over Pamphilus, and that, finally, was what Gaius had done. Hence the paradox that forfeiture, which had actually taken place, was taken not to have occurred after all. The practical result was that payment of the penalty could still be avoided, until the creditor had brought an action—that is, until litis contestatio had taken place. At the time of litis contestatio, of course, the programme of litigation was fixed conclusively104 and later developments could no longer be taken into consideration.

One might ask whether such an interpretation did not both unduly prejudice the interests of the creditor105 and disregard the "in terrorem" function of the penalty. But the creditor was allowed to reject any

performance tendered after the lapse of modicum tempus, if his interest in receiving it had fallen away in the meantime.106 Also, it was in his

hands to force the debtor either to make performance or to pay the penalty; once modicum tempus had passed, he could resort to litigation and thus preclude the debtor from unilaterally purging forfeiture. As far as the penalty itself is concerned, it seems to have fulfilled its "in terrorem" function if the debtor had rendered performance; if he had

erit, licet postea offeratur, attamen semel commissam poenam compromisse non evanescere, quoniam semper verum est intra kalendas datum non esse: sin autem oblatum accepit, poenam petere non potest doli exceptione removendus." Cf. also Marci. D. 4, 8. 52; Scaev.

D. 45, 1, 122, 2. For a full discussion, see Knutel, Stipulatio poenae, pp. 147 sqq. 104 Kaser, RZ, pp. 225 sq.

Because, as a consequence of this interpretation, he had to accept the belated performance. 1fhe did not do so (that is, if the fulfilment of the condition was brought about by the party to whose advantage it operated), the condition was deemed not to have been

fulfilled. Vide infra, p. 729. 106 Paul. D. 4, 8, 22.

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finally done what was expected of him, the enforcement of what was designed to put pressure on him surely must be out of place.107

(b) Praetorian intervention

In the second of the above-mentioned cases, however, there was no room for such a flexible approach. Where a specific date had been set and the penalty become payable at that time, subsequent performance could no longer change this situation. Thus it is only in these instances that "semel commissa poena non evanescit" becomes relevant. But even here it was not applied as a general rule of a binding character, for now and then we find the praetor coming to the rescue of the debtor, even where, according to the unequivocal wording of the stipulatio, the penalty had become payable. He was prepared to grant an exceptio doli where it seemed unreasonable of the creditor to enforce the penalty, even though his position had not really been adversely affected by the delay in performance.108 Another very interesting instance of praetorian intervention is Ulp. D. 2, 11, 9, 1:

"Si plurium servorum nomine iudicio sistendi causa una stipulationc promittatur, poenam quidem integram committi, licet unus status non sit, Labco ait, quia verum sit omnes statos non esse: verum si pro rata unius offeratur poena, exceptione doli usurum eum, qui ex hac stipulatione convenitur."

Here obviously an actio noxalis109 had been brought; the defendant had promised, by way of a cautio, vadimonium sisti, (re)appearance in court of the several slaves in question. Even if only one of the slaves was missing, according to a strict reading of the cautio, the penalty, in its entirety, became exactable. Where, however, the debtor offered a pro rata share of the penalty he was granted an exceptio doli against the claim for the whole sum. Thus, for considerations of equity, we find Labeo/Ulpianus here allowing what amounts to a reduction of the

107In a similar vein, see Kmitel, (1975) 175 Archiv fiir die civilistische Praxis 56 sq.

108Paul. D. 21, 2, 35: "Evictus autem a creditore tunc videtur, cum fere spes habendi abscisa est: itaque si Scrviana actione evictus sit, committitur quidem stipulatio: sed quoniam soluta a debitore pecunia potest servum habere, si soluto pignore venditor conveniatur. poterit uli doli exceptione." For a very interesting parallel in the old English common law (to which Professor R. Kniitel, Bonn, has drawn my attention), see the decision by Bereford CJ in Umfraville v, Lonstede YB 2 and 3 Edw II (Seiden Society) 58 and the comment by F.W. Maitland in his Introduction (p. xiii) to this volume: "A man has bound himself to pay a certain sum if he does not hand over a certain document on a certain day. Being sued upon his bond, he is unable to deny that he did not tender the document on the day fixed for the transfer; but he tenders it now, excuses himself by saying that he was beyond the sea, having left the document with his wife for delivery, and urges that the plaintiff has suffered no damage. . . . To our surprise, Bereford CJ . . . exclaims: 'What equity would it be to award you the debt when the document is tendered and you cannot show that you have been damaged by the detention?' (Quel equite serra de awarder a vous le dette de pus que l'escrit est prest, si vous ne porriez monstrer que vous justes endamage par la detenue?) In the end the plaintiff is told that he will have to wait seven years for his judgement. Here certainly we seem to see 'relief against penalties' and relief that is granted in the name of 'equity', though it takes the clumsy form of an indefinite postponement of that judgement,

which is dictated by the rigours of the law."

104 On which see infra pp. 916 sq., 1099 sq., 1118 sq.

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penalty in case of part performance; this idea was, later on, adopted by the French legislator and provided the historical basis for the ius moderandi, "lorsque l'engagement a ete execute en partie", contained in art. 1231 of the code civil.110

110 Already in its original form, i.e. before the alteration in 1975. Cf. also art. 1384 codice civile.

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CHAPTER 5

Suretyship

I.INTRODUCTION

1.The contract of suretyship

Where someone incurs a contractual obligation towards another, he will often be asked by his new creditor to promise a penalty in case of non-fulfilment. Stipulationes poenae can therefore be seen as one way of ensuring that promises are honoured. However, they give the creditor only another actio in personam against the debtor. Thus they do not protect him against the risk that the debtor may, once the debt has fallen due, have become insolvent or have disappeared. The creditor will therefore normally try to minimize the risk of losing out in one of two ways: he will either ask to be allocated a specific item belonging to the debtor (or to a third party) from which he will, in case of default or non-performance, be able to obtain satisfaction; or he may ask some other party (or parties) to guarantee fulfilment of the principal obligation. In other words, he will try to secure his position either by way of a real right (ownership, right of pledge, mortgage) or by actions in personam against one or more additional debtors (personal security). Traditionally, the most important type of personal security is the contract of suretyship, where, in the words of the BGB, the surety binds himself to the creditor of a third party to be responsible for the fulfilment of the obligation ofthat third party.1 Suretyship is well known in all modern (and ancient) legal systems.2 Roman law displayed a striking predilection for this type of security transaction (adpromissio). Like conventional penalties, adpromissiones had to be cast in the form of a stipulation. Three different types were known in classical Roman law: sponsio, fidepromissio and fideiussio. Their refined and elaborate structure made them a model for all times; thus, the rules governing suretyship today are still essentially Roman.

1 § 765 I BGB.

Cf. especially the contributions published under the title "Les suretes personnelles" as vols. 28 (1974), 29 (1971) and 30 (1969) of the Recueils de la societe Jean Boain pour l'histoire comparative des institutions. For more than 1 800 pages, the law of suretyship is discussed in a wide variety of historical and contemporary legal systems. The contributions range from Sumerian-Akkadian to (for example) Cambodian Saw. Neither Hungarian law from the 13th to the 18th century nor medieval Lotharingian law is neglected (although Roman-Dutch and Scottish law are). Very useful, too, for the modern comparative history of suretyship is William Burge, Commentaries on the Law of Suretyship (1849); cf. further Ralph Slovenko, "Suretyship" (1964-65) 39 Tulane LR 427 sqq.; Philip K. Jones, "Roman Law Bases of Suretyship in Some Modern Civil Codes", (1977-78) 52 Tulane LR 129 sqq.

114

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2. Real security and personal security

As is evident both from the standard of jurisprudential analysis and the amount of legislative activity, personal security was much more important in Roman law than it is today. Today creditors usually prefer real security.3 It provides them with assets of a rather stable value which can be converted into cash even in the event of insolvency and it excludes the risk of a (second) lawsuit against the surety (who may be unwilling to pay), or of being faced with his financial collapse too. "Plus cautionis in re est quam in persona"4—this statement by Pomponius would be a fair reflection of the modern trend in commercial life. As far as Roman law is concerned, however, the reverse was true. Two (possibly three) reasons can be given for the emphasis in Roman law on personal security.5

The first and most important reason relates to the value system that permeated Roman law and society. Friendship played a far greater social role than it does today; amicitia was a permanent relationship based on fidelity which gave rise to numerous and strict (extralegal) duties.6 "Omnia . . . alter pro altero suscipiet":7 this is a characteristic expression of such an attitude; and one of the things friends undertook as a matter of course was to stand surety for each other.8 It was part of the "officium" to help one's friend in every situation and no matter what the sacrifice—so much so that Cicero could state with only a mild degree of rhetorical exaggeration: ". . . sine amicitia vitam esse nullam, si modo velint aliqua ex parte liberaliter vivere. "9 While, therefore, amicitia made personal security a much more viable and popular institution in Roman society, Roman fides, to quite a considerable extent, alleviated the risks involved in it for the creditor: if it was in any event of prime concern for the Roman citizen to keep his word, he would certainly do everything in his power to honour a promise given for a friend.

Secondly, personal security had a much more potent effect than security by pledge; the harshness of personal execution made whoever was personally liable try to discharge his obligation almost at all cost. And, finally, one should also mention in this context the relatively unsatisfactory nature of the Roman law of real security, even though that was probably to a large extent a consequence of, rather

3 On the relative importance of personal and real security generally, see John Gilissen, "Esquisse d'une histoire comparee des suretes personnelles", in: Les suretes personnelles, vol. 28, pp. 87 sqq.

* Pomp. D. 5U, 17, 25.

э Cf. especially Schulz, CRL, pp. 400 sqq. and also Kaser, RPr I, pp. 660 sq.; Nicholas,

Introduction, pp. 149 sqq.

6 Schulz, Principles, pp. 233 sqq.; Karl Meister, "Die Freundschaft bei den Griechen und Romern", (1950) 57 Gymnasium 5 sqq.

Cicero, Luelius de amicitia, XXII, 82.

8Schulz, Principles, p. 237.

9Laelhis de amicitia, XXIII 86.

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than a reason for, the attractiveness of personal security. Usefulness and reliability of real security were seriously impaired by the lack of publicity: already by the time of the Republic, a right of pledge could be granted without transfer of the object to the creditor; later on, statutory liens with automatic priority in rank were introduced and in addition (non-possessory) general hypothecs over a whole property or parts of it gained considerable importance. Particularly during the 19th century, the deficiencies of the Roman law of real security were overemphasized ("eine wahre Pest", "etwas Furchterliches").10 The absence of a secure mortgage of land may well have contributed towards the rise of latifundia in Italy: whoever wanted to invest in land had to buy; the small farmers, in turn, because of the unavailability of real credit, were often forced to sell.11 On the other hand, a desirable result was achieved in that at least free (i.e. largely unencumbered) ownership of land had been preserved.12 Now, in the wake of 19th-century liberal expansionism, the "freedom" was proclaimed to incur debts by way of mortgage loans. A refined and consolidated land register provided the basis for what was called "mobilization of land value".13 The consequence was that landed property soon became overcharged with debts. Before the First World War in Germany a total of 60 billion Marks was invested in mortgages, the sum total of the national wealth being less than 350 billion Marks.14 Also, as far as the right of pledge on moveable things was concerned, the 19th century saw a move away from Roman law: delivery of the pledge to the creditor was made a mandatory requirement in terms of § 1205 BGB.15 It did not take long, however, before what is effectively a non-possessory pledge slipped in again through the back door: the constitutum possessorium of § 930 BGB provided a convenient starting point for the "modern" lease back transactions ("Sicherungsubereig-ming"). They have dramatically reduced the practical significance of all the elaborate provisions contained in §§ 1204 sqq. BGB, and constitute a remarkable reversion back to the Roman fiducia.16 While real security has therefore become more attractive today, it has remained a double-edged sword, beset with both new and old flaws and dangers. Personal security continues to play a significant role in those areas

111 Cf. Justus Wilhelm Hedemann, Die Fortschritte des Zivilrechts im XIX. Jahrhundert, II, 2 (1935), pp. 6 sq. (the quotations (a real plague; something dreadful) are taken from Thibaut and Hugo).

1 Schulz, CRL, p. 404.

12 Schulz, CRL, p. 404.

13 Justus Wilhelm Hedemann, Die Fortschritte des Zivilrechts im XIX. Jahrhundert. II, 1 (1930), pp. 42 sqq., 94 sqq.

14 Cf. Hedemann, Fortschritte, II, 1, p. 98.

71 Cf. Wolfgang Hromadka, Die Entwicklung des Faustpfandprinzips im 18. und 19, Jahrhundert (1971), pp. 41 sqq.

16 Cf. e.g. Andreas Wacke, Das Besitzkonstitut als Ubergabesurrogat in Rechsgeschichte und Rechtsdogmatik (1974), pp. 59 sqq.

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where, ironically, it is not a natural person who stands surety but either a State institution or a bank.17 Here, especially, the risk of insolvency appears to be considerably reduced.

II.SPONSIO, FIDEPROMISSIO AND FIDEIUSSIO

1.Sponsio

Of the three above-mentioned adpromissiones, sponsio was the oldest. It was characterized by the use of the word "spondere": "idem dari spondes?" "spondeo".18 This "idem" that the surety promised would have been spelt out in the promise of the main debtor, which had been concluded beforehand. We have already come across the institution of sponsio in a broader sense, signifying any stipulation (that is, not only a suretyship stipulation) in which the verb "spondere" was used.19 Because of a lack of sources, the early history of sponsio stipulatio is somewhat obscure. It is an open question whether the law of contract evolved from suretyship (in that sponsio was at first used exclusively to accept liability for others, then made available for the debtor to stand surety for himself, and only in the end turned into a method of creating debt and liability in one and the same person, that is, of making ordinary promises;20 sponsio in this broad sense would then possibly have emerged only after the time of the enactment of the XII Tables)21—or whether, alternatively, sponsio was applicable, right from the beginning, for purposes other than suretyship.22 Any answer must take into consideration certain terminological factors (namely, that "spondere" means "to promise"—in the broad sense; the word "sponsor",23 on the other hand, always seems to have been used for a person who promised for somebody else)24 and it is further complicated

1 Details of the economically most important areas in Walther Hadding, Franz Hauser, Reinhard Welter, "Burgschaft und Garantie", in: Gutachten und Vorschlage zur Uberarbeitung des Schuldrechts, vol. Ill (1983), pp. 584 sqq.

18Gai. Ill, 116.

19Cfsupra, pp. 71, 72.

20Cf. especially Ludwig Mitteis, "Uber die Herkunft der Stipulation. Eine Hypothese", in: Aus romischem und burgerlichem Recht, Festschrift fur Ernst Immanuel Bekker (1907), pp. 107 sqq.; also, for example, De Zulueta, Gaius II, pp. 145 sq., 152.

Cf e.g. Robert Feenstra, "Die Burgschaft im romischen Recht und ihr Einfluss auf die mittelalterliche und spatere Rechtslehre", (1974) 28 Recueils (op. cit., note 2) 307 sqq.

22Cf. esp. Ernst Levy, Sponsio, fidepromissio, fideiussio (1907), pp. 1 sqq.

23Cf. Jean Triantaphyllopoulos," "Sponsor", (1961) 8 RIDA 373 sqq.

24Boggling at this discrepancy in meaning between verb and agent noun, many writers

have attempted to harmonize the two. While some authors have imputed the wide range o( "spondere" to "sponsio" (cf., for example, Levy, loc. cit.), others have argued that the verb was originally used in the same narrow sense as the noun (cf., for example, Mitteis, loc. cit.). Both views have been criticized by David Daube (Roman Law, Linguistic, Social and Philosophical Aspects (1969), pp. 4 sqq.), who finds any argument based on the assumption of absolute agreement between a verb and its agent noun "utterly unconvincing". Daube shows that the agent noun "tends to be confined to the striking" (p. 2) and gives the following illustration: "Merere or mereri means to earn, meretrix, literally, the earneress.

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by the uncertainty about whether sponsio stipulatio had always been one single transaction, or whether it constituted an amalgamation of what were once two different roots.25 Be that as it may, for our purposes it is important to note that the sponsor was always liable for somebody else's debt; this is the characteristic difference from other sureties in the ancient law who, like vades and praedes, guaranteed the presence of the person of the wrongdoer/debtor or of the object in dispute in court ("Gestellungsburgen").26 Sponsio continued to be used for suretyship purposes; by the time of the later Roman Republic it had become, together with the closely related fidepromissio, the only form in which a promise to stand surety could be cast.27

2. The limitations of sponsio

Sponsio could, however, guarantee no debts except those which had themselves been created by way of a stipulation.28 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. Only then could the sponsio follow.

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".29 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

Was the noun at one time wide, including a schoolmistress? Or was the verb narrow and there is no profit and no merit but goes back to the example set by the call-girl? In reality the noun is from the outset confined to a sector of the verb. The lady is called earneress because she makes a profession of earning, because she sets about earning in a rather special fashion, and indeed because the very fact that a woman earns is striking-—there were not at the time many other ways, this kind of woman is the earneress" (p. 10). In the same way. according to Daube, the agent noun sponsor describes him "whose promise stands out"

(P-5)-

3 Cf. supra, p. 72, furthermore, especially, Vincenzo Arangio-Ruiz. "'Sponsio' e 'stipulatio' nella terminologia romana", (1962) 65 BIDR 193 sqq., who shows that the terms "stipulatio" and "sponsio", at least as far as we can trace them back, have always indicated the two sides of one and the same transaction. For a brief summary of the discussion relating to the origins of stipulatio, cf. also Jolowicz/Nicholas, pp. 280 sq.

26 Cf. Kaser, AhrOmisches ius, pp. 270 sqq.; Wesener, RE, Suppl. vol. XIV, pp. 447 sqq.; Teresa Gimenez-Candela, "Notas en torno al 'vadimonium'", (1982) 48 SDMI 126 sqq.

"' "Gesteiiungsbiirgschafi" by means of vades or praedes had been turned into the promise of vadimonium or cautio pro praede (both in the form of stipulations). The old praedes survived only in exceptional cases; cf. e.g. Jolowicz/Nicholas, p. 299.

2K Gai. Ill,'119.

24 This would be the case of joint debtors (plures rei promittendi): see Inst. Ill, 16 pr.

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subsequently and in the absence of the main debtor.30 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.31

A surety binds himself to be responsible for the fulfilment of somebody else's obligation. He often acts altruistically, especially where—as in Rome—the debtor did not have to draw so much on commercial banks, but could rely on his friends, who readily lent him their help as part of the officium amicitiae. Yet, as sureties, these friends were liable in the same way as the debtor, that is, they faced the dire consequences of personal execution if they could not or did not want to pay, once they were called upon to do so. Thus, there was a strong tendency to relieve the lot of sureties which resulted in quite an unusual degree of legislative activity.32 As a creditor normally had several sureties guaranteeing one debt, the first concern of the legislator was to spread the load evenly between them. A lex Appuleia gave an action to any surety who had paid more than his share against the others for the excess; ". . . inter sponsores . . . lex Appuleia quandam societatem introduxit", as Gaius put it.33 Then came the lex Furia that made the creditor divide his debt among the co-sureties who were alive at the time when the debt fell due.34 Thus he was no longer able to sue each of them for the whole; instead, he was faced with the prospect of having to bring an action against all co-sureties for their aliquot part—that is, of having to conduct a multiplicity of lawsuits. An important implication of the lex Furia was that the shares were fixed, regardless of whether all the co-sureties were solvent when the debt fell due. In other words: it was the creditor rather than the other co-sureties who carried the risk of insolvency of one (or several) of the sureties! If, for example, A, B, C and D were sureties for a debt of 120 and A had died before the debt fell due, B and C were liable for only 40 each, irrespective of whether the creditor could exact the third share of 40 from D or not. With the introduction of the lex Furia, incidentally, it became doubtful whether the beneficium legis Appuleiae still survived.

3U Frezza, Garanzie, vol. I, pp. 23 sqq.

31 Cf. Peter Apathy, "Zur Abgrenzung von Novation und Burgschaft", (1971) 18 RIDA 381 sqq., 399 sqq., 409 sqq., 427 sqq.

~ For a general outline, see Jean Triantaphyllopoulos, "La legislation romaine sur 1c cautionnement", (1961) 39 RH 501 sqq.; Frezza, Garanzie, vol. I, pp. 14 sqq.

33Gai. I I I , 122.

34Gai. III, 121.

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Seeing that a creditor who had exacted more than his rateable part from a sponsor became liable to manus iniectio himself,35 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.36

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.371fhe 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;38 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.39 "As if this were not enough'1,40 the lex Furia also limited the liability of the sponsor himself to two years. After the lapse of this time, he automatically became free.

3. Fidepromissio and the transition to fideiussio

Fidepromissio did not offer the creditor a more viable alternative, because it was subject to the same defects and limitations as sponsio.41 All the rules mentioned so far applied also to fidepromissio. The main difference between these two types of suretyship was merely that sponsio was confined to Roman citizens whereas fidepromissio stipulations were available to non-Romans too.

By the end of the Republic, therefore, while sureties were well protected, creditors started to look for better security. Thus a third type of suretyship stipulation emerged which was subject to none of the above-mentioned limitations.42 It soon began to supersede sponsio and

35 Gai. IV. 22. 3(1 Gai. III. 121 a.

37 Gai. Ill, 123.

3M Gai. Ill, 120.

39 Cf. supra, p. 72 and Kaser, RPr I, pp. 168 sq.. cf. further Levy, Sponsio, pp. 45 sqq. 4(1 De Zulueta, Gaius II, p. 161.

41As to fidepromissio, see Jean Triantaphyllopoulos, "Peregrinus fidepromissor (Gai. inst. 3, 120)", in: Melanges d'histoire ancienne offerts a William Seston (1974), pp. 473 sqq. and also Franz Wieacker, "Zum Ursprung der boiiae fidei iudicia", (1963) 80 ZSS 13 sq.

42That fideiussio was developed mainly in order to evade the suretyship legislation is the prevailing opinion; see e.g. De Zulueta, Gaius II, p. 161; Fcenstra, op. cit., note 21. p. 315; Jolovvicz/Nicholas, p. 300. Contra: Levy, Sponsio, pp. 124 sqq.; Werner Flume, Studien zur Akzessoritat der romischen Burgscha?sstipuhtionen (1932), pp. 36 sqq.

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