Causa in Roman law
In the title 2, 14 of the Digest the term "causa" appears in two places, both times in connection with the innominate real contracts. In the one case, Ulpian quotes Aristo as stating that "et si in alium contractum res non transeat, subsit tamen causa,...
esse obligationem": there is an obligation, even if the matter does not fall under any of the "nominate"contracts (such as emptio venditio and locatio conductio), provided only that a "ground" exists. Some lines later, the same is said in a negative form: "Sed cum nulla subest causa, propter conventionem hie constat non posse constitui obligationem."[2822] Causa, in this context, can easily be related to the characteristic element of an innominate real contract, namely the performance (be it a datio or a factum) of one of the parties concerned (which brings into existence the claim for counterperformance). This is, in any event, how the glossators understood the notion. "Id est datio vel factum, ex quo vestiatur contractus innominatus..." reads the gl. Causa ad D. 2, 14, 7, 4.[2823] Apart from that, causa appears in connection with the stipulation. Here it meant the underlying purpose of the promise which could, but did not have to be, mentioned in the stipulation. Depending on whether the stipulation had been framed causally or abstractly, lack of the causa stipulationis was either taken into consideration automatically or only if the promisee raised an exceptio (doli).[2824] The latter was the case in Ulp. D. 44, 4, 2, 3 ("si quis sine causa ab aliquo fuerit stipulatus, deinde ex ea stipulatione experiatur, exceptio utique doli mali ei nocebit"): the parties had entered into a stipulation, but there had probably been a misunderstanding as to what the promise was all about; and since the stipulation had been abstractly drafted, this lack of causa could be raised only on the basis of an exceptio doli.[2825] What this text did not do was to require specification of the causa as a requirement for the validity of stipulations in general. Yet, this is what the glossators read into it.[2826] Their interpretation becomes understandable if one bears in mind the changes which had occurred since the days of classical Roman law.
With the decline of the formulary procedure, the exceptio had lost its technical significance as an essentially procedural device and had thus acquired a new meaning as a term of substantive law.[2827] As a consequence, the distinction between invalidity ipso iure and dismissal of the plaintiffs claim per exceptionem was blurred.[2828] Moreover, as we have seen, by the days of the glossators the stipulation had in actual practice become a contract litteris. Stipulatio sine causa therefore, to them, essentially meant an instrument which testified to the conclusion of a stipulation without, however, mentioning the cause. If, according to D. 44, 4, 2, 3, the exceptio doli was available in such a case, this meant that the document (and with it: the stipulation) was rendered invalid. Or, to put the same idea positively: there had to be a causa for a valid stipulation, and this causa had to be expressly stated in the written document.3.
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