→ This article is about the procedure whereby one person might assume another person's debt. If you are looking for intercessio in the sense of a procedure whereby one magistrate might stay the judgment of another, see this separate article of Smith's Dictionary.
INTERCE′SSIO. It is a case of Intercessio when a man takes upon himself the debt of another by virtue of some dealing with the creditor. This may be in either of the following ways: he who intercedes may take upon himself the debt of another, and may become debtor in place of that other: or the intercedent may become debtor while the debtor still continues debtor (Vangerow, Pandekten, &c. vol. III, p133, &c.).
To the first class belong (1) the case of a man undertaking an already existing obligatio, so as to exclude the existing debtor; (2) And the case of a man taking an obligatio on himself, which does not already exist in the person of another, but which without such intervention would exist.
To the second class belong (1), the case when the creditor may consider either the original debtor or the intercedent as his principal debtor, or when, in other words, the intercedent is correus debendi (Inst. III. tit. 16. De duobus reis stipulandi et promittendi) (2) When the creditor can consider the intercedent only as liable to pay, when the principal debtor does not pay, or when in other words, the intercedent is a fidejussor (Inst. III. tit. 20, de Fidejussoribus).
(The views of Puchta as to the Intercessio are contained in his Institutionen, vol. III p48, &c.)
In the Institutes of Gaius, a distinction is made between sponsores and fidepromissores, on one side; and fidejussores on the other. With respect to one another, sponsores were cosponsores (Cic. ad Att. XII.17). In the Institutes of Justinian, the distinction between sponsores and fidejussores does not exist.
Sponsores and fidepromissores could only become parties to an obligatio verborum, though in some cases they might be bound, when their principal (qui promiserit) 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. A fidejussor might become a party to all obligations, whether contracted re, verbis, litteris, or consensu. In the case of a sponsor the interrogatio was, Idem dari spondes? in the case of a fidejussor, 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. On the other hand, the stipulator had an adstipulator only when the promise was to pay something after the stipulator's death, for if there was no adstipulator the stipulatio was inutilis or void (Gaius, III.100, 117). The adstipulator was the proper party to sue after the stipulator's death, and he could be compelled by a mandati judicium to pay to the heres whatever he recovered.
The heres of a sponsor and fidepromissor was not bound, unless the fidepromissor were a peregrinus, whose state had a different law on the p641 matter; but the heres of a fidejussor was bound. By the Lex Furia, a sponsor and fidepromissor were free from all liability after two years, which appears to mean two years after the obligation had become a present demand; but the Lex Furia only applied to Italy. All of them who were alive at the time when the money became due could be sued, but each only for his share (singuli viriles partes). Fidejussores were never released from their obligation by length of time, and each was liable for the whole sum (singuli in solidum obligantur); but by a rescript (epistola) of Hadrian, the creditor was required to sue the solvent fidejussores separately, each according to his proportion. If any one of them was not solvent, his share became a burden to the rest.
A Lex Apuleia, which was passed before the Lex Furia, gave one of several sponsores or fidepromissores, who had paid more than his share, an action against the rest for contribution. Before the passing of this Lex Apuleia, any one sponsor or fidepromissor might be sued for the whole amount; but this lex was obviously rendered useless by the subsequent Lex Furia, at least in Italy, to which country alone, as already observed, the Lex Furia applied, while the Lex Apuleia extended to places out of Italy; yet not to fidejussores.
A fidejussor, who had been compelled to pay the whole amount, had no redress if his principal was insolvent; though, as already observed, he could by the rescript of Hadrian compel the creditor to limit his demand against him to his share.
A creditor was obliged formally to declare his acceptance of the sponsores or fidepromissores who were offered to him, and also to declare what was the object as to which they were security; if he did not comply with this legal requisition, the sponsores and fidepromissores might, within thirty days (it is not said what thirty days, but probably thirty days from the time of the sureties being offered), demand a praejudicium (praejudicium postulare), and if they proved that the creditor had not complied with the requisitions of the law, they were released (Gaius, III.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, 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; and every surety could recover on a mandati judicium from his principal whatever he had been compelled to pay on his account. By a Lex Publilia sponsores had a special action in duplum, which was called an actio depensi.
There is a passage in the Epitome of Gaius in the Breviarium (II.9 § 2), which is not taken from Gaius: it is to this effect:— The creditor may sue either the debtor or his fidejussor; but after he has chosen to sue one of them, he cannot sue the other. — Cicero appears to allude to the same doctrine (ad Att. XVI.15) in a passage which is somewhat obscure, and is variously explained. The subject of the sponsio often occurs in Cicero's letters; and in one case he was called upon in respect of a sponsio alleged to have been given by him twenty-five years before (ad Att. XII.17). Cicero uses the expression "appellare" to express calling on a surety to pay (ad Att. I.8).
Women generally were incapacitated from doing many acts on account of the weakness of the sex. It was a general rule that any person might "intercedere," who was competent to contract and dispose of his property; but minores XXV and women had only a limited capacity in respect of their contracts and the disposition of their estates. 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 the Senatusconsultum Velleianum [Senatusconsultum Velleianum] absolutely prohibited all Intercessio by women; and the Novella 134 c8, had for its special object to make null all Intercessio of a wife for her husband. A woman who was sued in respect of her Intercessio, or her heres, might plead the Senatusconsultum, and she might recover anything that she had paid in respect of her Intercessio. The Senatusconsultum, though it made null the intercessio of a woman, protected the creditor so far as to restore to him a former right of action against his debtor and fidejussores: this action was called Restitutoria or Rescissoria. In the case of a new contract, to which the woman was a party, the Intercessio was null by the Senatusconsultum, and the creditor had the same action against the person for whom the woman "intercessit," as he would have had against the woman: this action, inasmuch as the contract had no reference to a former right, but to a right arising out of the contract, was Institutoria. 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 could plead the senatusconsultum.
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