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The verbal contract

The rituality of stipulationThe FormAdvantages/DisadvantagesCertain/Uncertain Causality and StipulationCausality vs. AbstractionA case

The ritual and its disadvantages• Is a simple agreement enough to create an obligation? What

about a written document?

• Only if their content is the typical of one of the consensual contracts (sale, hire, mandate, partnership). Otherwise, nudum pactum obligationem non parit (a mere pact does not bear an obligation) , so a ritual is needed:

• 'Decem mihi dari spondes?' spondeo

• Disadvantages?

• What if the stipulation is more complicated? c. usufructuaria.

• What if the parties live in different cities?

• Writing can be added to the oral ritual, but not replace it: not constitutive. How to contract an obligation inter absentes?

• Subjects in potestate

The rational behind the ritual

• Advantages?

• Could one of the parties argue that he had really not agreed? That his intention in fact was not entering the contract?

• The agreement is made indisputable. It prevents a possible lack of consideration.

• Could one argue that ten had been promised only on the assumption that a certain service be provided in turn?

• The content is fixed indisputably, and separated from the previous negotiations

• Comparison to the modern contractual system

• Why not an unilateral form? I promise...

Certum / Incertum

• (a) Do you promise 10.000 HS? I do

• (b) Do you promise me damages if your wall falls over my property?

• (c) Do you promise to build for me a house on the Cornelian estate?

• Differences? (a) dare certum / (b) dare incertum / (c) facere

• Divisibility?

• a-b, divisible, c indivisible. Consequences?

• Further: a claimed by actio certi, b-c by actio (incerta) ex stipulatu.

• If it appears that A owes 10 to B.../ As A has promised sth indeterminate to B, whatever for that reason A should give or perform in favour of B...

• The role of the judge; pluris petitio; verum pretium // interesse; death of the debtor.

• Iust. C. 8,37,13 pr.: Veteris iuris altercationes decidentes generaliter sancimus omnem stipulationem, sive in dando sive in faciendo sive mixta ex dando et faciendo inveniatur, et ad heredes et contra heredes transmitti, sive specialis heredum fiat mentio sive non... (530 A.D.)

Certum / Incertum

• Actio certi (condictio certae creditae pecuniae: the same as in case of a loan for consumption (mutuum) and litteral contract)

• Actio incerti (actio ex stipulatu)

Do you promise...

• ... ten modii of best quality african wheat?

• ... ten modii of african wheat?

• ... african wheat?

• ... the wine you keep in your cellar?

• ... to give me your copy of Julian's Digesta?

• ... to give back the book you have borrowed from me?

• ... to give me a gaulish gladiator slave?

• ... 1000 or the Cornelian estate?

• ... to give me right of way on the Cornelian estate?

• ... not to prevent my crossing through the Cornelian estate?

• ... the usufruct over the Cornelian estate?

• ... your share of ownership on Stichus?

• ... an interest rate of 8 % on the money you have borrowed?

Condicio and dies

• Titius: Do you promise to give me Stichus on the next kalends of January? If you don't, do you promise to give me 1000? - Caius: I do

• Can Titius claim anything before the kalends of January?

• If Caius gives the slave before the kalends of January, can he claim it back? What, If he gives the 1000?

• 'on the next kalends of January', dies; 'if you don't (fulfil the obligation)' condicio.

• Dies suspends the action, condicio the obligation itself. What kind of stipulatio sub condicione is the second one?

• Stipulatio poenae. If Stichus is not given in time, can Titius claim the slave or only the money? What if the value of the slave is 1000 and he promised only 10?

Stipulation and its cause

• Before leaving Rome for a long journey, Titius, diffident of his own slaves, entrusts his most valuable possessions to his neighbour Caius.

• In the political turmoil of the late Republic, Titius and Caius fall in enemy sides. Caius, his own possessions having been confiscated by the enemy, now refuses to give back Titius' unless a high amount of money is paid.

• Caius: "Do you promise to give me 200.000 HS?" Titius: "I promise". Is this stipulation valid?

• A has action against B. What can B do?

• The praetor helps by means of exceptio doli. How does this work?

• The defendant is absolved if he proves the unlawfulness of the cause

• The stipulation is made useless iure praetorio. What was the technical reason?

• illicit cause

Causality vs Abstraction

• If I take a book from my library and give it to you, does it become yours?

• It depends on the cause, v.gr. commodatum vs donation

• Traditio = causal.

• If I mancipate a Estate in your favour, does it become yours?

• Yes: the cause is not relevant here: one takes for granted that the ritual of mancipatio is performed only when there is intention to transfer ownership. Ritual substitutes for cause

• Mancipatio = abstract.

• Abstract acts tend to be ritual; causal acts, informal.

The difference in trial• I acquire a slave, he runs away

back to the former owner, whom I sue. What do I need to prove my ownership: a) if based on traditio; b) if based on mancipatio?

• (a) the traditio itself and its cause; (b) just the mancipatio

• When our claim is based on an abstract act, we are favoured by a presumption: it is presumed that the act had in fact a cause and a licit one.

• What if I (c) sue my debtor on the basis of a stipulatio? What do I need to prove?

• Just the stipulatio itself. Does this mean that the cause is totally irrelevant?

• No: the defendant can prove the cause unlawful or void, and thus get absolution.

• (a) causal; (b) - (c) abstract. What's the technical difference between them?

• In (c) the presumption of a licit cause can be destroyed by the defendant; in (b) it can't.

• (c) presumption iuris tantum (b) presumption iuris et de iure

Acts

Causal

'weakly' abstract

'strictly' abstract

In trial

The cause has to be proved

The cause is presumed iuris

tantum

The cause is presumed iuris et

de iure

traditio

stipulatio

mancipatio

A case• Titius asks Caius for a loan of 10.000 HS. Caius agrees, on the

condition that a documented promise guaranteed by sponsores [cautio] is given in advance: "I admit having received 10.000 from Caius, to be repaid in one year with an interest rate of 12%. And I have promised accordingly, together with Seius and Sempronius as sponsores, in answer to Caius' stipulatory question". The money is to be handed over to Titius one month after the stipulatio. In the meantime, Caius dies, his inheritance is disputed, the money is never given. Several years later, Caius' heirs, finding the document of the stipulatio, claim back the money from Titius. Quid iuris?

• Why is the exception needed? "Si paret Titium Caio decem dare oportere, iudex Titio Caio decem condemnato; s.n.p.a." // "Si paret Tititum Caio decem dare oportere, nisi in ea re dolo malo factum est factumve erit, iudex ..."

• Who carries the burden of the proof?

C. 4,30,3

Idem (Imp[erator] Antoninus) A[ugustus]) Demetriae.

Si ex cautione tua, licet hypotheca data, conveniri coeperis, exceptione opposita seu doli seu non numeratae pecuniae compelletur petitor probare pecuniam tibi esse numeratam: quo non impleto absolutio sequetur.

D[ata] III [ante] k[alendas] Iul[ias] Laeto et Cereale cons[ulibu]s.)

The Same A. to Demetria.

If suit is brought against you on your cautio, although an hypothecation was given, and you plead the exception of fraud or of money not given, the plaintiff will be compelled to prove that it was given, and if he does not do so, you will not be held liable.

(29.06.215 A.D.)