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But there can be a contract before that moment, because the determination whether the promisor shall pay or not is no longer within his control. Hence the condition is subsequent to the existence of the obligation. On the other hand, every condition subsequent is precedent to the incidence of the burden of the law.
5 It is usual in stipulations to name a place for payment; for instance, 'Do you promise to give at Carthage? Such a stipulation as this, though in its terms absolute, implies a condition that enough time shall be allowed to the promisor to enable him to pay the money at Carthage.
For instance, a promise to pay for clothes if made to the customer's satisfaction, has been held in Massachusetts to make the promisor his own final judge. /1/ So interpreted, it appears to me to be no contract at all, until the promisor's satisfaction is expressed.
Joint promises are so constituted by the promisor answering, 'I promise, after they have all first asked the question; for instance, if after two promises have separately stipulated from him, he answers, 'I promise to give so and so to each of you. But if he first promises to Titius, and then, on another's putting the question to him, promises to him too, there will be two distinct obligations, namely, one between him and each of the promisees, and they are not considered joint promisees at all.
The oldest cases, going on the notion of benefit to the promisor, said that it could not be, for it was a trouble, not a benefit. /2/ Then take it from the side of detriment. The delivery is a necessary condition to the promisor's doing the kindness, and if he does it, the delivery, so far from being a detriment to the promisee, is a clear benefit to him. But this argument is a fallacy.
The reason why this is an overclaim is that in stipulations of this sort it is the promisor who has the election, and who may give the slave or the money, whichever he prefers; consequently if the promisee sues, alleging that either the money alone, or the slave alone, ought to be conveyed to him, he deprives his adversary of his election, and thereby puts him in a worse position, while he himself acquires an undue advantage.
Such authority, for instance, is not necessary when a pupil stipulates for the delivery of property, though it is otherwise where he is the promisor; for it is an established rule that the guardian's authority is not necessary for any act by which the pupil simply improves his own position, though it cannot be dispensed with where he proposes to make it worse.
Parties who are not present together, therefore, can form these contracts by letter, for instance, or by messenger: and they are in their nature bilateral, that is, both parties incur a reciprocal obligation to perform whatever is just and fair, whereas verbal contracts are unilateral, one party being promisee, and the other alone promisor.
Suppose the promise to have been, that the promisor would pay at all events, and not take advantage of the statute; still, would not the statute operate on the whole, on this particular agreement and all? and does not this show that the law is no part of the contract, but something above it?
So that a stipulation for conveyance to Titius, but made by some one else, is void: but the addition of a penalty, in the form 'If you do not convey, do you promise to pay me so many aurei? makes it good and actionable. 20 But where the promisor stipulates in favour of a third person, having himself an interest in the performance of the promise, the stipulation is good.
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