3.1.202 to 3.1.207

(176) Moreover, an obligation is extinguished by novation, [1] for instance, if I stipulate that what you owe me shall be paid by Titius; for a new obligation arises by the intervention of a new person, and the [1] "Novatio est veteris obligationis in novam translatio et transfusio ." —ed. first obligation is annulled by being changed into the second one. To such an extent is this the case, that sometimes, although the subsequent stipulation may be void, still the first one is disposed of by novation; for example, if you owe me something and I stipulate that it shall be paid by Titius after his death, or by a woman, or a ward, without the authority of his or her guardian; in which case I lose my claim, for the first debtor is released from liability, and the subsequent obligation is void. The same rule of law does not apply if I stipulate with a slave, for then the former debtor remains liable, just as if I had not afterwards stipulated with anyone else. (177) When, however, I subsequently stipulate with the same person, novation only takes place where something new is contained in the subsequent stipulation, that is to say, if some condition, date, or sponsor should be either added or omitted. (178) What we have stated with reference to a sponsor has, however, not been absolutely settled; for it has been held by authorities of the other school that neither the addition or omission of a sponsor has the effect of causing novation. (179) Moreover, what we stated with reference to the introduction of a condition effecting novation, must be understood to mean that a novation would take place if the condition should be fulfilled; but if it should fail, the former obligation will continue to be operative. But let us see, whether a party who brings an action in a case of this kind can be barred on the ground of fraud, or informal agreement; for it seems to have been agreed upon by the parties that suit could only be brought for the recovery of the property if the condition of the subsequent stipulation should be fulfilled. Nevertheless, Servius Sulpicius thought that a novation took place immediately, while the condition was in suspense, and if it should fail that there would be no cause of action on either ground, and in this way that the claim would be extinguished. In consequence of this, he gave it as his opinion that if anyone should stipulate with a slave for a debt which Lucius Titius owed to him, a novation would be created, and the claim would be lost; because an action could not be brought against the slave. In both these instances, however, we make use of another rule; and novation is not produced under these circumstances any more than if I should stipulate for what you owe me with an alien, who is not allowed to participate as a sponsor, by using the expression, "Do you solemnly agree?"