INTERCESSIO
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.)
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