Latin
Lines 1.648-1.652
Roman Law and Society, Institutes of Justinian 1.648-652
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7. Not only things, but acts, may be the subject of a stipulatio: as when we stipulate that something shall, or shall not, be done. And, in these stipulationes, it will be best to subjoin a penalty, lest the amount included in the stipulatio should be uncertain, and the plaintiff should therefore be obliged to prove how great his interest is. Therefore, if any one stipulates that something shall be done, a penalty ought to be added as thus: "If the thing is not done, do you engage to give ten aurei by way of penalty?" But, if by one single question a stipulatio is made that some things shall be done, and that other things shall not be done, there ought to be added some such clause as this: "If anything is done contrary to what is agreed on, or anything agreed on is not done, then do you engage to give ten aurei by way of penalty?"
XVI. Obligatio By Consent.
Obligationes are formed by the mere consent of the parties in the contracts of sale, of letting to hire, of partnership, and of mandatum. An obligatio is, in these cases, said to be made by the mere consent of the parties, because there is no necessity for any writing, nor even for the presence of the parties: nor is it requisite that anything should be given to make the contract binding, but the mere consent of those between whom the transaction is carried on suffices. Thus these contracts may be entered into by those who are at a distance from each other by means of letters, for instance, or of messengers. In these contracts each party is bound to the other to render him all that equity demands, while in verbal obligationes one party stipulates and the other promises.