Was Acceptilatio an Informal Act in Classical Roman Law?[11]

In classical law acceptilatio was mainly an act of release belonging to the ius gentium.^[34] The lawyers only discuss acceptilatio as “ein reines ErlaEgeschaft".^[35] In legal practice it was also used as a receipt, as can be proved from Tabula Herculanensis 80 (68 AD) and Ulpian D. 46.4.19.1.^[36]

After this short introduction, we now turn to the form of acceptilatio in clas­sical Roman law. Texts of Gaius (G. 3.169), of Pomponius (D. 46.4.15), Florentinus (D. 46.4.18), Paul (D. 46.4.14) and of Ulpian (D. 46.4.6, 7 and 8.4) and a passage of Justinian’s Institutes (3.29.1) have been studied often before. Rescripts of Caracalla (CJ 8.43.1) and of Diocletian and Maximian (CJ 2.20.5) as well as a sentence in Theophilus’ Paraphrasis of Justinian’s Institutes (3.29.1) can throw additional light on the form of acceptilatio in classical law.

Like most of my predecessors, I start with Gaius’ fundamental text (G. 3.169): “Item per acceptilationem tollitur obligatio. acceptilatio autem est veluti imag­inaria solutio. quod enim ex verborum obligatione tibi debeam, id si velis mihi remittere, poterit sic fieri, ut patiaris haec verba me dicere QUOD EGO TIBI PROMISI, HABESNE ACCEPTUM? et tu respondeas HABEO". Between § 168, where Gaius examines the solutio and § 173, where he discusses the solu­tio per aes et libram, which is really an imaginaria solutio (an act created after the imago of payment), Gaius deals, in §§ 169-172, with the acceptilatio, which he calls velut imaginaria solutio (something like an imaginary payment).^[37]

Acceptilatio is, according to Gaius, the formal release of a debtor from an obligatio verbis by a dialogue in the form of question and answer, of which Gaius gives as an example: quod ego tibi promisi, habesne acceptum? habeo.^[38] The wording of Gaius himself makes clear that comparable dialogues between debtor and creditor in other formulations were not excluded.^[39] Another form of wording seems indicated in the case of release of a promissor who owed a facere or a non facere; the words given by Gaius are apparently concentrated on an obligation of dare.

In 3.171, after the example that was surely the most usual wording of accep­tilatio, Gaius goes on by stating that only verbal obligations can be dissolved in this way, “because it has been held consistent,^[40] that an obligation created by (formal) words can be dissolved by other (formal) words”.^[41] Gaius mentions here the famous principle of the so called contrarius actus, called in modern German romanistic literature “Kontrarprinzip” or “Prinzip der formalen Korrespondenz”.^[42] As Knutel showed, there was in Roman law a rule of expe­rience with several applications according to which the legal effects of a legal act could be terminated by a contrary legal act with the same formalities.

Florentinus (D. 46.4.18) and Ulpian (D. 46.4.6) use in their examples exactly the same words as Gaius uses in 3.169.3⁸ Pomponius gives in D. 46.4.15 a slightly different wording. He writes: “Si is qui Stichum promisit ita interrogat quod Stichum promisi, Stichum et Pamphilum habesne acceptos?” (“Suppose that one who has promised Stichus puts the question: â€?Since I promised Stichus, have you received Stichus and Pamphilus?' ”).

Given the enormous number of peregrini living and trading in the Roman empire before AD 212, and of Roman citizens with a mother tongue other than Latin after 212, it is understandable that, just as with stipulatio,³⁹ lawyers had to decide the question of whether such citizens and foreigners, to whom accep­tilatio as an institution of the ius gentium was accessible, could use their own language. Ulpian expresses himself on the validity of the use of Greek: D. 46.4.8.4, Ulpian 48 ad Sabinum:⁴⁰ “... quia hoc iure utimur, ut iuris gentium sit acceptilatio: et ideo puto et Graece posse acceptum fieri, dummodo sic fiat, ut Latinis verbis solet: eχeιs λαβων δηναρια τoσα: ∈χω λαβων''.

Ulpian gives as his opinion, that a Greek question followed by a Greek answer had to be allowed, provided the Greek words were the translation of the usual Latin formulas.⁴¹ As an example Ulpian gives the quoted Greek words, which correspond with acceptumne habes? habeo. It is striking that Ulpian does not give his view in a firmer way, because, as he elsewhere (D. 45.1.1.6, second part) informs us, Sabinus had already permitted the use of Punic and Aramaic for stipulatio.⁴² It is possible that Roman lawyers were somewhat afraid that a Roman creditor would answer too quickly in a positive way to a question for­mulated in a language which he did not understand well. With Wacke,⁴³ I sup­pose that Ulpian in the quoted text mentioned Greek only as an example; other mean that payment must have taken place, which is surely not so, but that creditor and debtor really agreed about the release of the debt. This interpretation could maintain the quoted words as classical.

³⁸ Winkler, supra n.5, 619—20, writes that we can find in Digest title 46.4 “eine Fulle von Anwendungsfallen die zwar alle in der Form von Frage und Antwort, nicht aber in einheitlichen Worten gefaβt sind”. Though the cases are manifold, the wordings are however nearly identical.

³⁹ See, on the problem of languages with regard to stipulatio, the instructive article of Wacke, supra n.16, 14—59.

⁴⁰ “Our observance is that formal release is a matter of the law of nations. I think therefore that [the slave] can obtain such release even in Greek, provided that [the Greek] matches the Latin words.” [“Have you received so many denarii?” “I have”] Acceptilatio was the palingenetical con­text of fragment 8; see Lenel, Pal. II 2952 col.1180.

⁴¹ For the compilers of Justinian’s Institutes there was no longer any doubt. They write (Inst. 3.29.1): “sed et Graece potest acceptum fieri, dummodo sic fiat, ut Latinis verbis solet: cχεις λαβων δηναρια τoσα: eχω Aa/jcL’”.

⁴² See Wacke, supra n.16, 26.

⁴³ Wacke, supra n.16, 32.

languages were surely permitted, even question and answer in different lan­guages must have been allowed, as was the case for stipulation,^[47] on condition that each party had at least a passive knowledge of the language used by the other party.

It is also Ulpian who lets us know that acceptilatio could certainly also be done with the question and answer: “Do you release me by acceptilatio for 10,000?” “Yes I do”.^[48] Watson has showed^[49] that the meaning of the dialogue with facere is different from that with habere. Here the faςade of the pretence that performance has taken place is no longer respected. Watson states^[50] that it was only Ulpian who permitted this. Sturm^[51] suggested that Ulpian considered something as certain which Sabinus had still regarded as questionable. The wording of Ulpian’s assertion in D. 46.4.7: Sane et sic acceptilatio fieri potest..., show that there was no longer any doubt about permitting the dialogue reported in the text. As Gaius (G. 2.85) still wrote that the creditor must admit that he received performance, my supposition is that the new wording was accepted at the end of the second century AD. What apparently was still required was the form of a question from the debtor and a corresponding answer from the cred­itor.

That this formality of a question by the debtor and a congruous answer by the creditor remained necessary during the whole classical period can be proved by three texts, of which no exegesis has hitherto been given by the authors who have dealt with the topic of acceptilatio, viz. CJ 8.43.1, CJ 2.20.5 and Theophilus, Paraphrasis 3.29.1.

We start with a rescript of the emperor Caracalla to Aurelios Apronios of 212 AD, incorporated in CJ 8.43.1:^[52]

“Iam tibi rescripsi posse apud iudicem quaeri, an sollemnibus verbis tutoris auctori­tate interveniente soror tua acceptilatione debitorem suum liberavit. quare si in repe­tenda pecunia, quam exsolvit, diversa pars perseveravit, uteris defensionibus competentibus.”

[“I already wrote to you in an earlier rescript that inquiry should be made before the judge as to whether your sister released her debtor by means of solemn words and with the approval of her guardian. And therefore, if the opposing party continues to claim back the money which he paid (after the acceptilatio), you will be able to use the applicable defences”.]

We can reconstruct the case as follows. Apronios has become his sister’s heir. She had a claim to a sum of money from D. D pretends, that after being dis­charged from his debt by her as his creditor, he still paid the money to her (or to her heir Apronios). Now he wants to bring the condictio indebiti as having paid a sum which he no longer owed. The imperial chancery emphasizes that the pre­tended acceptilatio was only valid if it was done by the woman using verba sollemnia and with the auctoritas of her tutor.^[53] If these two formal require­ments could not be proved by D, then the heir of the creditor could defend him­self with success against D’s condictio indebiti. We will keep in mind the requirement of sollemnia verba and will explain hereafter what this means exactly.

The rescript that Diocletian and Maximian addressed in 293 AD to Aphrodisia, incorporated in CJ 2.20.5, proves that at the end of the third cen­tury the requirement of sollemnia verba still existed for a valid acceptilatio.

We first read the text:

“Si superstite patre per emancipationem tui iuris effecta matri successisti rebusque tuis per legitimum tutorem eundemque manumissorem administratis postea transegisti cum eo bona fide, perspicis, quod si pactum tantum factum sit, petitio tua per excep­tionem submovetur, si vero novatio legitimo modo intercessit et acceptilatio subsecuta est, nullam tibi iam superesse actionem. 1. Sane si laesa es immodice liberatione sollemniter per novationem atque acceptilationem tributa, non de dolo propter vere­cundiam, sed in factum actio tibi tribuenda est.”

[“When, after your father who outlived his wife had made you an independent person by means of emancipation, you became your mother’s heir and your property was administered by your father who emancipated you as your statutory guardian, and you made later on in good faith a transactio with him, you will understand, that if only a pactum (de non petendo) has been made, your claim will be repelled by an exception (viz. the exceptio pacti) and that, if however a novatio has taken place in the legally prescribed way and an acceptilatio has followed, no action will be left to you any more. 1. But if you are greatly damaged by the release you gave in a solemn way to your father by means of a novatio and an acceptilatio, because of the respect you owe to your father, no actio de dolo, but an actio in factum ought to be given to you”.]

Aphrodisia has been emancipated by her father^[54] after the death of her mother and has become the last mentioned’s heir. During her impubertas her father administered her property as her tutor legitimus. After her twelfth birth­day her father had given account of his administration and Aphrodisia had made a transactio and had released him. Apparently Aphrodisia regretted subsequently the release she gave to her father and addressed herself to the impe­rial chancery with a request to tell her what she could do. The chancery gave her a real lesson in Roman law. It distinguished between the case in which a rea­sonable transactio had been made and that in which she had been seriously dam­aged. In the first case there could have been either a pactum de non petendo or a novatio required by law followed by acceptilatio. In the second case discussed in § 1, which interests us specially here, the chancery decided that if the dis­charge had been given by Aphrodisia to her father sollemniter⁵² by means of a novatio followed by an acceptilatio, an actio in factum⁵³ has to be given to her. We observe that, according to the chancery of Diocletian at the end of the third century, the acceptilatio had to be made sollemniter, that means in a formal way in conformity with the legal requirements.⁵⁴

The last source which gives us the same information is Theophilus in his Paraphrasis of Justinian’s Institutes; I quote the beginning of 3.29.1 in Ferrini’s edition with the Latin translation given by him:^{55 ii}καl η acceptilatiων διαλvει την cνοχfν. eστl S∈ acceptilatiων ωs cν oρω cικονικf καταβολf pτ∣μασι τυmχοls γινομeνη". That is: “Acceptilatio quoque obligationem tollit. acceptilatio est, si eam definire velis, imaginaria solutio sollemnibus verbis facta..Although in Justinian’s law acceptilatio was certainly an informal act,⁵⁶ Justinian’s Institutes largely preserved the text of G. 3.169-170 and 172, and Theophilus surely translated into Greek the definition of acceptilatio found by him in a work of a classical lawyer, which was: imaginaria solutio sollemnibus verbis facta.

These three texts which we have just discussed prevent us from accepting Alan Watson’s theory that acceptilatio was in classical law an informal act. Until the end of the third century AD acceptilatio was an act which had to be performed sollemniter; for acceptilatio, sollemnia verba were required. Using what we know about the formalities of stipulatio in classical Roman law,⁵⁷ we can state, in the light of the principle of the contrarius actus⁵⁸ and with the help of the fragments studied above, that for acceptilatio there were five require­ments. These five were: (1) there had to be spoken words; (2) there had to be a question by the debtor followed by an answer by the creditor; (3) question and answer had to correspond formally; (4) unitas actus was imposed;⁵⁹ and (5) creditor and debtor had to be present at the same place at the moment of the act. As with stipulatio, the sollemnitas verborum was the most characteristic for-

⁵² See, on the meaning of this word, Heumann-Seckel, reference required here, 543: “sollemniter, in formlicher Weise, den Vorschriften des Rechts, insbes. den durch dasselbe vorgeschriebenen Formen gemaE”.

⁵³ Because of the verecundia she owes to her father, the actio de dolo cannot be brought, just as the actio furti is excluded between spouses.

⁵⁴ It is clear from the context that the word sollemniter is related to the novation as well as to the acceptilatio.

⁵⁵ Institutionum Graeca Paraphrasis Theophilo antecessori vulgo tributa recensuit E C Ferrini, II, (Berlin, 1897; repr. Aalen, 1967) 377-8.

⁵⁶ See Watson, supra n.1, 201, and Voci, supra n.12, 403.

⁵⁷ See on the form of stipulatio in the classical period, S Riccobono-B Beinart, Stipulation and the Theory of Contract (Amsterdam/Cape Town, 1957) 26-50; Kaser, RPR I 538-41; Wacke, supra n.16, 20-31.

⁵⁸ I do not suppose that a complete correspondence between the wording of stipulatio and accep­tilatio was necessary. If the creditor had asked: “Hominem mihi dabo?” and the debtor had answered positively on that question, surely an acceptilatio could be made in which the debtor asked: “Hominem quem tibi promisi acceptumne habes”?

⁵⁹ It is possible that a short absence was tolerated of the party who had posed the question before the other party gave his answer, as Ulpian permitted for stipulatio in D. 45.1.1.1. mality of acceptilatio. The formal correspondence of question and answer that was essential for stipulatio^[55] was equally essential for acceptilatio.^[56] At least since the beginning of the first century AD other languages than Latin could be used; the language of the question posed by the debtor could even differ from that of the creditor’s answer, provided that one party had at least passive know­ledge of the language used by the other. Until the time of Gaius the dialogue between the debtor and the creditor had to express the fictitious fact that the creditor had received performance. After the end of the second century AD question and answer could also be related to the release given to the debtor by the creditor.

We know that at the end of the classical period the importance of the written act as evidence of the oral stipulatio was increasing. We know too, from a rescript of Severus and Caracalla of 200 AD^[57] and from Paul, D. 45.1.134.2, when it had been written (in a deed recording a stipulatio of two persons who both had been present) that the debtor had promised a future performance, a presumption had been accepted^[58] that the creditor had first put the correspond­ing question. It is easy to imagine that something comparable was accepted in a deed recording an acceptilatio in which only the words of the creditor were men­tioned. Unfortunately sources on this point are lacking.

In this chapter, dedicated in friendship to Alan Watson, I make clear that, although acceptilatio was not in classical Roman law an informal act, Alan in 1961 very justly attacked the then prevailing opinion of romanists about the form of acceptilatio, an opinion still dominant today.