The verbal contract
The rituality of stipulation
The Form
Advantages/Disadvantages
Certain/Uncertain
Causality and Stipulation
Causality vs. Abstraction
A case
1
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 • If it appears that A owes 10 to B.../ As
A has promised sth indeterminate to B,
do
whatever for that reason A should give
• (b) Do you promise me damages if
or perform in favour of B...
your wall falls over my property?
• The role of the judge; pluris petitio;
• (c) Do you promise to build for me
verum pretium // interesse; death of
a house on the Cornelian estate?
the debtor.
• Differences? (a) dare certum / (b) • Iust. C. 8,37,13 pr.: Veteris iuris
dare incertum / (c) facere
altercationes decidentes generaliter
• Divisibility?
sancimus omnem stipulationem, sive
in dando sive in faciendo sive mixta ex
• a-b, divisible, c indivisible.
dando et faciendo inveniatur, et ad
Consequences?
heredes et contra heredes transmitti,
• Further: a claimed by actio certi, bsive specialis heredum fiat mentio sive
c by actio (incerta) ex stipulatu.
non... (530 A.D.)
Certum / Incertum
• Actio incerti (actio
• Actio certi
ex stipulatu)
(condictio certae
creditae
pecuniae: the
same as in case
of a loan for
consumption
(mutuum) and
litteral contract)
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
• Just the stipulatio itself. Does
• I acquire a slave, he runs away
this mean that the cause is
back to the former owner, whom I
totally irrelevant?
sue. What do I need to prove my
ownership: a) if based on traditio; • No: the defendant can prove
b) if based on mancipatio?
the cause unlawful or void, and
thus get absolution.
• (a) the traditio itself and its
• (a) causal; (b) - (c) abstract.
cause; (b) just the mancipatio
What's the technical difference
• When our claim is based on an
between them?
abstract act, we are favoured by
• In (c) the presumption of a licit
a presumption: it is presumed
cause can be destroyed by the
that the act had in fact a cause
defendant; in (b) it can't.
and a licit one.
• What if I (c) sue my debtor on the • (c) presumption iuris tantum (b)
presumption iuris et de iure
basis of a stipulatio? What do I
need to prove?
Acts
In trial
Causal
'weakly'
abstract
'strictly'
abstract
traditio
The cause has to
be proved
stipulatio
The cause is
presumed iuris
tantum
mancipatio
The cause is
presumed iuris et
de iure
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.)