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INTERCESSIO LEGAL. It is intercessio when a person takes upon himself the debt of another. To become intercessor a person must incur liability by entering into a contract or other transaction with some one else's creditor. Thus a payment by one person of another's debt is not intercessio, because no liability is incurred by such payment (Dig. 16, 1, 4.1). Nor is it intercessio to promise a debtor to indemnify him for outgoings to his creditor, since no relation is thereby created between the party promising and the creditor. He who intercedes may either (1) take upon himself the debt of another and become debtor in place of that other (privative intercession), or (2) become debtor while the person for whom he intercedes is also debtor (cumulative intercession).

1. To the first head, that of privative intercession, belong (a) the case of a man taking upon himself an already existing obligation of another, so as to release the latter from all liability. In this case the old debt is put an end to by a species of novation, called expromissio, the creditor accepting the intercessor as his debtor in the place of his previous debtor, and thus discharging the latter; (b) the case of a person taking an obligation on himself which does not already exist, but which the person for whom he intercedes would otherwise have contracted for himself. This is called intervention (cf. Dig. 16, 1, 18.14: “Si quum essem tecum contracturus, mulier intervenerit, ut cum ipsa potius contraham, videtur intercessisse” ).

2. To the second head, that of cumulative intercession, belong (a) the case of a person becoming surety for another; (b) the case of a person becoming a party to a correal obligation otherwise than as fidejussor (as to correi, cf. Inst. 3.16, “De duobus reis stipulandi et promittendi;” and see art. OBLIGATIO); (c) the giving a thing in pledge for the debt of another (Dig. 16, 1, 8 pr., 32.1).

It may be convenient to give some account in this place of the law relating to a surety's liability. It was a general rule that a contract of suretyship could only be entered into in a formal way by question and answer. In the case of a sponsor, the interrogatio was, “Idem dari spondes?” In the case of a fidepromissor, it was, “Idem fidepromittis?” In the case of a fidejussor, it was, “Idem fide tua esse jubes?” The object of having a sponsor, fidepromissor, or fidejussor, was greater security to the stipulator. With respect to one another sureties were consponsores (Cic. Att. 12.1. 7), confidepromissores, confidejussores. In the Institutes of Gaius, a distinction is made between sponsores and fidepromissores on the one side, and fidejussores on the other. Each sponsor or fidepromissor (the obligation of sponsor and fidepromissor became identical, but only cives could be sponsores) was originally liable for the whole debt for which he was security, and he had no means of action against a co-sponsor. The liability did not pass to his heredes. By the Lex Publilia, sponsores who had been compelled to pay the debt had a special action in duplum against the principal debtor, which was called actio depensi.

The Lex Furia de sponsione, B.C. 345, made a considerable change in the position of sponsores and fidepromissores, by enacting that a sponsor or fidepromissor should only be liable for his share of the debt with his co-sureties, who were alive at the time when the money became due (singuli viriles partes), and that he should cease to be liable after the lapse of two years. A Lex Apuleia, which was passed before the Lex Furia, gave one of several sponsores or fidepromissores who paid more than his share an action against the rest for contribution; but this lex was rendered useless by the Lex Furia, at least in Italy, to which country alone the Lex Furia applied, while the Lex Apuleia extended to places out of Italy.

Fidejussores were of later institution than sponsores and fidepromissores, and, on account of the preference given to them, gradually superseded the older kind of surety. Each fidejussor was liable for the whole debt, as if he were sole debtor, his obligation being that of a correus (singuli in solidum obligantur). Fidejussores were never released from their obligation by length of time, and the heres of a fidejussor was bound. A fidejussor who had been compelled to pay the whole amount had no redress against his co-fidejussores, but every surety could recover on a mandati judicium from his principal whatever he had been compelled to pay on his account. A creditor might sue either the debtor or his fidejussor, and after he had elected to sue one of them he could not sue the other. Sponsores and fidepromissores could only become parties to a debt which was contracted by stipulation, though in some cases they might [p. 1.1015]be bound when their principal was not, as in the case of a pupillus who promised without the auctoritas of his tutor, or of a man who promised something after his death; but a fidejussor might be accessory to all obligations, whether contracted re, verbis, litteris, or consensu, or arising in any other way.

The stringent liability of fidejussores was somewhat lessened by special enactments of the emperors in their favour (beneficia). Thus, by a rescript (epistola) of Hadrian, a fidejussor who was sued might require (ope exceptionis) the creditor also to sue the other solvent fidejussores, each according to his proportion. If any one of them was not solvent, his share became a burden to the rest. According to a change in the law made by Justinian (Novell. 4), a fidejussor might compel the creditor to sue his debtor, if solvent, before having recourse to him (beneficium excussionis). A fidejussor before paying the debt might insist that the creditor should assign to him all his rights of action against co-fidejussores (beneficium cedendarum actionum).

The Lex Cicereia provided that a creditor who obtains the guarantee of sponsors and fidepromissors should previously declare to them the amount of the debt to be guaranteed and the number of sponsors or fidepromissors by whom it was guaranteed. If it was judicially proved that the creditor had not complied with the requisitions of the law, the sureties were released. This rule was subsequently made the practice in the case of fidejussores also (Gaius, 3.123). A Lex Cornelia limited the amount for which any person could be a security for the same person to the same person within the same year to twenty thousand sesterces, but with some exceptions, one of which was a security dotis nomine. No person could be bound in a greater amount than his principal, but he might be bound in less.

In the legislation of Justinian sponsores and fidepromissores are not recognised, they having been entirely supplanted by fidejussores. The subject of the sponsio often occurs in Cicero's letters; and in one case he was called on in respect of a sponsio alleged to have been given by him twenty-five years before (ad Att. 12.17). Cicero uses the expression appellare to express calling on a surety to pay (ad Att. 1.8). Certain informal kinds of guarantee, called mandatum qualificatum and constitutum debiti alieni, which are also species of intercession, were established in later Roman law; for an account of these, see MANDATUM and CONSTITUTUM.

Women were incapacitated from doing certain acts on account of the weakness of the sex. In the early part of the reign of Augustus, and in that of Claudius, it was declared by the Edict that women should not intercedere for their husbands. Subsequently, in the reign of Claudius, A.D. 46, the Senatusconsultum Velleianum absolutely prohibited women becoming sureties or borrowing money for others, two particular modes of intercession. The law was extended by the jurists to other cases of intercession, which, though not expressly provided for in the SC., were within its principle. A woman who was sued in respect of her intercessio, or her heres, might plead the statute (exceptio SC. Velleiani). Whatever she paid in ignorance of her right so to plead, she might recover. In certain cases a woman was permitted to renounce the benefit of the senatusconsultum; and there was a considerable number of exceptions to the rule that a woman who interceded could plead the senatusconsultum. (For the changes made by Justinian in the law on the subject, see Windscheid, Pandekten, 2.488.) Hence the term intercessio is used in two senses in our sources: (1) for any undertaking by one person of the obligation of another, which is its ordinary sense; (2) in a narrower sense, for any such undertaking, which is contrary to the SC. The Novella 134, 100.8, was specially intended to prevent a wife interceding under any circumstances for her husband.

Dig. 16, 1, ad SC. Velleianum; Paulus, S. R. 2, 11; Cod. 4, 29; Gaius, 3.115-127; Inst. 3.20, de fidejussoribus; Dig. 46, 1; Cod. 8, 41, de fidejussoribus et mandatoribus; Girtanner, Die Bürgschaft nach gemeinen Civilrecht; Hasenbalg, Die Bürgschaft des gemeinen Rechts; Kattenhorn, Ueber Intercessionen der Frauen; Vangerow, Pandekten, 3. § § 577, 578, 579, 581; Windscheid, Pandekten, 3.476, &c., § 485, &c.; Poste's Gaius, 3. § § 110-127, comm.)

[G.L] [E.A.W]

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