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In order for a contract to be valid parties must have intellectus (understanding) and voluntas (wish, will). Lunatics and infants lack intellectus, which means they do not know what they are doing and so cannot contract (G.3.106.) Slaves lack voluntas and therefore cannot contract. However, although slaves cannot be bound by a contract, they can contract to benefit their master, even without his permission, (because he will then be able to choose whether or not to enforce it – D.45.1.62) or with his consent, may burden him, because he will provide the necessary voluntas. Wards and women can stipulate under their tutor’s authority (G.3.107) and this is not needed if they benefit under the stipulation (G.3.108.)
Intention to be bound
The orthodox argument is that intention was not an essential condition of Roman contract law but an integral Byzantium interpolation. However, Ibbetson has argued that the intention of a contracting party was necessary. D.50.27.48 argues that, in the context of divorce, what is said in anger will not bind unless it is accompanied by action e.g. a wife saying she will walk out and then doing so. A madman cannot stipulate because he lacks understanding (G.106.) These texts combined suggest that some form of intention to be bound is required.
Agreement was an essential to having a valid contract under Roman law. Without it, the contract was void D.220.127.116.11.The result of this was that animus was needed from both sides of the party in order to accept the burden and in order to accept the benefit of the contract. The texts cover two situations where agreement fails.
Firstly, if you stipulate for slave A and there are two slaves called A, which slave the stipulation is binding for depends on evidence extraneous to the verbal contract. For example, if a hand is placed on one slave (D.34.5.21.pr.)
Secondly, in the situation where a document has been used as evidence of a contract but the document is ambiguous (which is where agreement is most important) the texts discuss two possible responses. This ambiguity may be resolved against the stipulator (the approach taken by Celsus and Ulpian) or the mistake may make the contract void (the approach taken by Venellius and Paul and followed in Justinian’s Institutes.)
A Roman contract had to be oral. Since the contract was oral, it could not be made by the deaf or dumb without a slave to act as their mouth or ear piece and could not be made from afar. D.45.1.1.pr, which appears to have been compressed as the reasoning does not follow perfectly, says that there is only a stipulation when parties speak so the mute, deaf and dumb cannot stipulate, and someone who is not there cannot stipulate. However, a slave may stipulate for a deaf or dumb master.
The Greeks, however, used purely written contracts, which clearly had some influence on Roman law, as writing was used. However, it is widely held by authors such as Zimmermann and Nicholas that the oral contract remained crucial and the documents merely supplemented the contract as evidence. In C.4.32.1 (circa 160AD) there is a question which was sent to the emperor involving a situation where a document witnesses a promise to pay back a loan but does not mention the requirement of interest, which was a part of the oral promise. The response is that the interest is still enforceable. This fits with D.50.17.92 which says a stipulation which is recorded wrongly is still valid. Also, D.18.104.22.168 is an example of a written stipulation, and it speaks in the past tense, that T had asked and M had promised, which again suggests that the written documents performed and evidential function. More often than not by the time of the late Empire under Emperor Leo (which influenced his rescript), the Oral stipulation was never in fact made; the documents recorded a non event.
There is some dispute about whether or not the stipulatio degenerated and became a written contract. Nicholas has argued that the written document became very strong evidence of an oral agreement (circa. 140AD – D.22.214.171.124.) There was thus a presumption that an oral promise had been made, unless it could be proven that the parties had not met. By 201AD this is stated explicitly in the texts, for example, in S.7.2. This approach demonstrates an attempt by the Roman lawyers to reconcile Greek contracts, which purported to be solely written, with the Roman world, which required an oral exchange.
Diosidi has argued that the stipulatio degenerated further, so far that although theoretically you must have an oral exchange, in practice this was not necessary. The first text he uses to support his argument is G.3.1.34 (circa 130AD.) However, this text refers to chinographs and synographs, (non Roman terms) and it seems a better interpretation of it is that it is simply describing the situation in Greece. He also refers to D.45.1.30 (circa. 220 AD) in which a written document purports to be a contract, however, this is not incompatible with the arguments of Nicholas.
G.3.92 says that to create a verbal obligation one must use pairs of words with a correspondence between question and answer. It then uses the Latin word Spondo, and lists 6 examples of words, and then says that only Roman citizens can use the verb spondeo. In C.8.37.10, which was a text from Justinian’s time, it says that stipulations shall be enforced whatever words they are couched in. It is clear that there was some degeneration of the stipulatio, however, the extent to which the stipulatio degenerated depends on the view taken as to what the stipulatio originally required.
Nicholas has argued that veluti here means that is to say and that the stipulation started off as being a set list of words that could be used. There are examples in the texts of other words being used but he argues that most of these are interpolations, for example D.19.2.54.pr (which is generally accepted as being interpolated) and D.126.96.36.199 which appears to have been torn from its original context as it is inelegant and formed in bad grammar. He accepts that some words may have been added to the list (such as Inst 3.1.) and argues that Justinian was attempting to revive classical law but at the same time, reconcile written and oral practice, so he interprets this text to mean that the list becomes an unbounded list at this point.
Other academics have contested this. Watson argues that since you can destroy a stipulation without formal words, you can probably create one in the same fashion. Winkler says that Gaius always uses veluti to mean for example. Van Oven points to the fact that G.3.92 does not say that the words create a stipulation but that they create a verbal obligation. He has argued that given that there are another two types of verbal obligations not in the list, the list in inconclusive. Also, it seems strange that a limited list should contain such informal words as dari, meaning simply to give (of the 6 examples of words given, the first four are very formal, but the others are very common.) This seems, at first glance, to be undesirable, as parties would be bound far too easily. However, Ibbetson has pointed to the requirement of intention and said that this means that an unbounded list was not a problem. Taking this approach, Riccobono thus argues that C.8.37.10 means that there was no longer any need for question and answer.
D.45.1.2 suggests that the degeneration may have gone further still, requiring no correspondence between question and answer. This text says that if one party saus “Will you give?” and the other says “why not?” he is bound, but if he merely nods, there is no civil or natural obligation. The example of a guarantor is then given. The text is clearly abbreviated, and it seems unlikely that the stipulation did ever degenerate this far as if this was the case, we would expect the many references to agreement between question and answer to have been excised from the other texts.
The texts are inconclusive as to which languages can be used G.3.93, this says that stipulation is valid in Greek, providing the other party understands it. The reference only to Greek may have been simply because this was the only other language parties could speak.
D.45.1.16 says that if the question is in Latin and the reply is in Greek, the obligation is settled providing the two correspond. This seems to suggest that there was not a closed list of words. Importantly, it then goes on to say that other languages can only produce an obligation, not an action. However, the examples given are all of dead languages – which may be significant (it may be that other languages could have been used.) An obligation is only produced where both parties understand each other, but this may be through an interpreter. The last clause suggests that the text may have been interpolated, as the use of an interpreter seems unlikely as it would be highly problematic because the interpretator might lie as to what was being said.
Conditions about the timing and interval
- No gap between question and answer
D.45.1.137.pr considers whether or not there can be a gap between question and answer. It states that a moment may naturally intervene but otherwise it should be continuous, and “he” may not begin something else, even if the reply is given on the same day. The point of the text seems to be that the question and answer must be glued together, however, there are a few uncertainties. The first part, referring to the intervention of a moment, may be an interpolation, however, it may be a careful qualification by a lawyer (and is supported by D.188.8.131.52 which suggests there may be a brief gap and the party may even go away and then come back again.) Who it is who may not begin something else is also unclear, the Latin is ambiguous, but it seems likely this text is referring to the actions of the promisor.
That the text expressly rebuts the idea that a reply may be given on the same day after a party has undertaken some other business, suggests that such things were valid at some point in Roman law, although it could be an interpolation. D.184.108.40.206 says that a person answering on the same day is bound but someone answering on the next day is not. An analogy may be drawn with a legal trial, where things had to take place in one day but they would divide the day, so it was technically the same day, even though not chronologically. The emphasis placed was on factual continuity and legal bondedness.
- Superfluous words between question and answer
It seems that any superfluous things between question and answer may have been simply ignored, this is certainly the approach taken in D.45.1.65. However, the author of this text was Florentinus, which is interesting. There were two persons of this name, one of them was contemporary of Ulpian. Generally the Digest tends to quote Ulpian, so if this was the case, we would expect Ulpian to have been quoted. The other Florentinus came after Ulpian, which would suggest that, since Ulpian did not say it, it was only the case in later law. However, the situation is uncertain as it may simply have been the case that it was so obvious that Ulpian did not say it.
Correspondence of subject matter
If something is called by different names between the question and answer, for example, a pen is referred to as a writing instrument in the answer, the stipulation was still valid – D.45.1.136.pr.
Content of the contract
Conditional question and unconditional answer – This was invalid in Roman law: D.220.127.116.11
Stipulation for when I die: This is valid and is taken to mean I will perform when I am dying – the performance is due in the last moments of life (G.3.100). However, a stipulation for the day before death is not valid (Inst 3.19.15)
Stipulation for after death: This was probably not permissible during classical law because the obligation resides solely in a third party (the heir) – G.3.100. However, Ulpian, when he states the rule that one party cannot promise for another, makes an exception for heirs, which may mean that it was permissible. By the time of Justinian, the clear inconsistency between permitting a stipulation for when I die but not for after death or for the day before death, was removed, as both were now valid – Inst.3.19.13.
Stipulation for 10, answer given is 20: According to G.3.102 this would be void. However, according to D.18.104.22.168 it would be valid for 10. If the stipulation is for slave a and slave b and the answer is slave a, it will be valid for that one slave (D.22.214.171.124.) Ulpian argued there are as many stipulations as things stipulated for. This may seem unfair, but it is up to the promisee whether or not he enforces the promise.
Stipulation for a or b, where the answer given is a: This is void in the case of slaves (D.126.96.36.199) but valid in the case of money (D.188.8.131.52.) The difference arises because money can’t be destroyed in the way that slaves can be, so a stipulation for slave a or b is fundamentally different from one for a because in the first instance if a dies, the stipulation would be valid for b, whereas in the second, there would be no contract.
This is when an obligation is stated as arising on a future event which is certain to happen, for example, I will pay £10 on Wednesday. The obligation and the debt both arise from the moment of contract formation, which means that although you cannot bring an action for the £10 before Wednesday, if the £10 is paid before the end of Wednesday, a condictio could not be brought to reclaim it.
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A condition is when an obligation is stated as arising on an event that may or may not happen. Although you cannot withdraw from a conditional stipulation once made, no debt arises until the condition is satisfied (D.12.6.16.) An exception arises if the party prevents the condition occurring, in which case it is treated as arising already D.50.17.161.Conditions can be resolutive or suspensive.
A resolutive condition is where there is an existing debt which is destroyed on the occurrence of an event. For example: "When X reaches the age of 25, he no longer has the right to live in Y" (the fact that it is incertain whether or not he will reach this age makes this a conditio and not a dies as dies incertus pro conditio habetur.
A suspensive condition is one where there is no duty to pay unless the event happens. This was very useful. It could be used to create a penalty clause, concentrating the mind on performance because if the building was not built you would have to pay money. It also allowed for the determination of damages on such an event, rather than leaving it in the hands of the iudex. Leaving it in the hands of the iudex was uncertain because of problems of evidence, the non availability of specific performance and that the damages were discretionary and thus uncertain (Inst.3.15.7,) it was also faster to do it this way. These conditions could also be used to prevent appeal against the decision of an arbiter by putting a penalty in place if his decision was not kept to. It could also be used to ensure payment to a third party by making a condition that if a sum was not paid to T, the money would have to be paid to me (which could not be achieved directly due to the rules relating to payment of third parties.)
There were, however, a few types of conditions which were problematic:
Immoral conditions – these were void outright e.g. promise money to someone if they don’t marry someone (C.3.82)
Impossible conditions e.g. a cow with no legs jumping - These were void, and if found in a will, the section which was impossible would be struck out (G.3.98.)
Conditions which are always fulfilled – If £10 is promised if S doesn’t win the lottery and S can never win the lottery because he is a slave, the money is always due (D.44.1.7 – repeated by Justinian.)
Risk bearing in contracts – If A promises £10 if B doesn’t give £5 to S, and S dies the risk falls on A. However, it can be redrafted as £10 will be given is £5 is not given to S. If S then dies the risk falls on ????
Perplexing conditions e.g. in wills - that S is to become free and when he is free, he is to be heir (D.184.108.40.206) Romans normally saved them. For example, in this case they regarded the man as both free and bound at the same time.
Preposterous conditions – Obligation due before you can know if it is true. J.3.9.14 says that it used to be that preposterous conditions were invalid but Justinian changed the law. However, it doesn’t seem to be that it was invalid by the time of Paul and Africanus this may have been an interpolated, or the lawyers may have reached this point by later classical law. However, contrasting the examples given in these two texts suggests that there may have been a fundamental different between the two types of preposterous conditions. In J.3.9.14 the example given if promising to pay on Wednesday if the ship arrives on Friday. In D.45.1.126.pr it is that the party will pay 10 per year from today if S becomes counsel. In the second example, it could be that the obligation arises when S becomes counsel, however, backdated payments will have to be paid from this point now. The Code 6.3.52 also speaks on this matter, however it argues that they are invalid and valid, and appears to have been something like lecture notes, updated with the changes made by Justinian but without removing the old stuff.
Furthermore a suspensive potestative negative condition could be impossible to realise before the death of the person. For example: I will give you £10 unless you remarry. This raises problems in this instances as the only time when you can be certain that you have not remarried is on your death, at which point it is of no use. This issue is resolved by the application of the cautio Muciana (attributed to Mucius Scaevola) which turned the suspensive, negative and potestative condition into a resolutive, affirmative and potestative one.
Condictio – This is a claim for a certain thing. In the condictio you did not have to say why something was owed merely that it was owed and claim the exact precise amount. It’s original role in the system of legis actiones was that D would swear he hadn’t got x, if he failed to swear it he would be liable and pay an extra penalty. Alternatively, D could challenge P to swear. If P swears successfully he would not be liable, if he fails he is liable for this and a penalty. If he refuses to swear, the claim would be disallowed. Here the beliefs on swearing were that the gods would prevent someone from saying the untruth. However, there was little room for flexible interpretation of liability because no questions were asked when the oath was made. By the time of Ulpian there was a condictio certae creditae pecuniae for money and a condictio certae res to establish the value of a thing.
Actio ex stipulatu – This is a claim for an uncertain thing and would give unliquidated damages e.g. failure to do something. The procedure was that you would quote the words of the stipulatio and the iudex would determine the amount due. This meant that there was leeway in determining the amount of damages owed (so that the stipulation was theoretically a stricti iuris contract was not a problem) and was also easier as you did not have to say how much you wanted to claim, and risk asking for the wrong amount.
Promise to give: stipulatio dari Promises to do: actio ex stipulatu
Fraud - In 67BC a defence of fraud (committed by the promisor or promisee – D.220.127.116.11) was created. Ulpian considers the views of Servius and of Labeo in D.18.104.22.168. Servius argued that the defence existed when one thing was pretended and another thing done, whilst Labeo focused on the wrongful intentions of the party – any cunning / trickery / contrivance to cheat / trick / deceive. Ulpian followed Labeo so dolus by the time of Ulpian was any wrongful conduct in the making of the contract or in standing on rights in the contract. This introduces bona fides into a stricti iuris contract. In the consensual contracts, good faith was key as this would always be considered, however, since dolus was only a defence, it meant that good faith would only be considered if you added it as a point of consideration in the Praetor's formula of the case.
Duress - Metus was introduced as a defence at a later stage. The exact meaning of duress is uncelear from the texts, however, it seems that it must have been severe and contrary to sound morals (D.22.214.171.124) affecting a man of resolute character (D.4.2.6) and probably resulting in a fear of serious evil (Ulpian quoting Labeo – D.4.2.5.) That the requirements were so strict is to be expected – if the requirements were not so strict you might have parties arguing, for example, that they had been forced to enter a loan because they were poor (economic duress.) Dolus was included in metus, but since metus was enforceable against a third party whilst dolus was not, metus was a better defence to use (D.126.96.36.199.)
- A. Romac, Rječnik rimskog prava, Zagreb, all editions apply
- A. Romac, Rječnik rimskog prava, Zagreb, all editions apply
- Nicholas, "The Form of The Stipulation in Roman Law", writing in Law Quarterly Review (69 LQR 253) (a good account of Stipulatio).