9.6 Contracts litteris

(Inst.Gai.3.128.-34., lnst.3.21.)

9.6.1 Early development

it was the practice for the responsible paterfamilias to record financial transactions; they would first be noted in a daybook and then transferred to a ledger (Metzger, Companion, 148-50).

As Birks, Obligations, 37 observed: 'The key to this is the distinction between the dispositive and evidentiary use of writing.' There were two sorts of entries—those that were evidence of a debt, and those that created a debt. In the former case, the entry did not create a contractual obligation but acted as confirmation ofit, e.g. A records that he lent B 1,000 sesterces that day (cf. lnst.Gai.3.131.). But what if A had not lent B any money that day, but had nevertheless recorded that B owed him 1,000 sesterces? Then the written entry created a monetary obligation— the contract litteris ('by written record'} (cf. inst.Gai.3.128.). The debtor had to consent to the entry, but it is not clear how such consent was evidenced. Indeed, there is much that is unclear about the contract litteris. The main account (that of Gaius) was written at a time when the contract was beginning to fade in importance. As it had become obsolete long before Justinian, the contract litteris (in its original form) was not discussed in the Digest. It is clear, however, that the presence of both parties was not necessary for the making of the entry—an important advantage compared to stipulatio, for example. For a discussion of the importance of this type of contract, see Birks, Obligations, 37-51.

It seems that only Roman citizens could be parties to the contract; at least this was the Proculian view, based partly on the suggestion that this form of bookkeeping was peculiarly Roman. The Sabinians, however, argued that a foreigner could be a party, but only as a debtor. The contract was unilateral and stricti iuris, which made it attractive to the creditor in certain circumstances. Suppose that A owes B money under the contract of sale—B can novate the obligation by entering it in his ledger.

The effect will be to replace the original obligation and to create a new one, which might be more easily provable (through production of the ledger) and which will afford the debtor fewer opportunities for disputing the debt, given that the contract is stricti iuris. Novation of existing obligations became the chief purpose of the contract litteris.

9.6.2 Later development

The practice of keeping private ledgers started to decline in the Empire owing to the growth of banking. So, the contract litteris became obsolete by the late Empire. Nevertheless, Justinian included a contract litteris as part of his fourfold classification of contracts. What then was the contract litteris of Justinian's time? It consisted of the written acknowledgment of a fictitious loan of money, i.e, a loan that had not been made at all, or one where the amount loaned was less than that recorded. Such an acknowledgment bound the debtor: the creditor could sue on it, using it as evidence of the alleged debt, The burden of proof, originally on the debtor if he wished to deny the debt, was eventually imposed on the creditor, i.e. he had to show that he had made the alleged loan. Under Justinian, the debtor had two years in which to deny the debt. If he failed to do that, he was bound by the original acknowledgment—it acquired contractual force even though it was primarily evidentiary in function,

Justinian's inclusion of the contract litteris of his time within his fourfold classification does seem rather artificial. His classification essentially focused on the source of contractual obligations, and thus did not readily encompass Transactions that were evidential rather than creative in function (see Birks, _: Obligations, 37-44).

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Source: Du Plessis Paul J. Borkowski's. Textbook on Roman Law. Oxford University Press,2020. — 440 p.. 2020

9.6 Contracts litteris

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