Contracts Verbis

These are the contracts which are made by word of mouth. Much the most important is stipulatio, but it is convenient to mention and put aside the two others, both highly specialised.

1. Dotis Dictio (Declaration of Dowry)

Dotis dictio (declaration of dowry) was a means of promising a fiance or husband that a given dowry would be certain. It was open only to the woman's paterfamilias, to herself if she were sui iuris and to her debtor with her authority. Anyone else wanting to promise a dowry would have to use the stipulatio, and these three could also do that if they wished. It was no extra trouble. The difference was that in dotis dictio there was no need for the promise to be made in response to a question put by the promisee.

2. lusiurandum Liberti (Freedman’s Oath)

This was the promise made on manumission by which the slave acquiring freedom swore to do works for or confer benefits on his patron, the former owner. This could also be done by stipulatio, and also differed from stipulatio in being a one-sided declaration, �with only one person speaking and no question put’ (G.3.96).

Why did these specialised tiddlers survive beside stipulatio, at least into classical law? It would have been so easy to merge them. The answer is probably no more mysterious than that the law harmlessly respected the etiquette of these two social contexts. It is indelicate to stipulate for a dowry. One does not care to put such a gross question to a future father-in-law, not even with his prior consent. It strikes the wrong note. So also with freedmen, though the shades of feeling are different. A patron does not ask for his operae. They are offered.

3. Stipulatio (Stipulation)

This is a very ancient contract. It goes back to the time of the Twelve Tables, at least in the form of the sponsio, which is the version of the stipulatio using spondere as the word of promising.

The first two questions are: What precisely was the formality required? And, what stopped stipulatio developing into a general and complete law of contract in itself, displacing the need for the rest of the list?

i. What was the formality?

For the classical law the only real doubt is whether the oral exchange of question and answer had to use special words or could use any words which sufficiently expressed the agreement of the parties. This is what Gaius says (G.3.92-4):

92. An obligation verbis is made by question and answer, in this way (veluti): �dari spondes? spondeo (Do you warrant to convey? I do warrant),' �dabis? dabo (Will you convey? I will convey),’ �promittis?promitto (Do you promise? I do promise),’ �fidepromittis? fidepromitto (Do you give your word? I do give my word),’ �fideiubes? fideiubeo (Do you guarantee? I do guarantee),’ �facies? faciam (Will you do? I will do).’ 93. The obligation verbis which is made using the form �dari spondes? spondeo’ is peculiar to Roman citizens. But the rest are iuris gentium (part of the law of all peoples) and are valid between all men whether Roman citizens or foreigners, and even if they are expressed in Greek, as in this way (veluti hoc modo): [There follow four words in Greek, with spondeo omitted, obviously for the reason given, and no word forfidepromitto.] And these words are also valid for Roman citizens so long as they understand Greek.

The question is whether Gaius’s list of words is exhaustive or merely illustrative. The word veluti is capable of introducing either kind of list. If there was only this passage to go on, I would still incline to the view that the list is exhaustive. The reason is that if you are merely illustrat­ing questions and answers you do not go on quite so long and, much more important, you do not give exact equivalents in another lan­guage. In particular I do not think the statement outlawing any equivalent for spondeo is intelligible unless the list is closed.

If such formality seems unreasonable, only recall the difference between a signed document and a deed in modern law. The vestigial seal makes all the difference. Yet in itself it is as unreasonably fussy as insistence on specified words in the Roman contract. Also if dare and facere seem too light-weight and colloquial, the answer may be that they are hallowed by their use in litigation, as for instance in formulae.

Justinian’s Institutes certainly support the view that the classical law did not allow a free choice of words. Having set out the Latin list they explain that Greek can be used, or Greek by one and Latin by the other.

But these solemn words were used in former times (haec sollemnia verba olim in usufuerunt). Later a constitutio of Leo was enacted which, having abolished solemn requirements as to words (sollemnitate verborum sublata), looks only to the meaning and common understanding of the parties in whatever words expressed (sensum et consonantem intellectum ab utraque parte solum desiderat, licet quibuscumque verbis expressus est).

The constitutio of Leo to which this refers is given in the Codex, C.8.37.10 (from ad 472):

Omnes stipulationes, etiamsi non sollemnibus vel directis, sed quibuscumque verbis pro consensu contrahentium compositae sunt, legibus cognitae suam habeantfirmitatem. Let all stipulations known to the law take effect even though composed not in solemn or ordained words but in any words whatsoever fitting the agreement between the contracting parties.

This provision is easily understood as eliminating the need for set words. Those who take the other view are driven to more difficult positions, as that it was aimed only at the written evidence of the stipulation or that it abolished the need for question and answer altogether, so that a stipulation became any agreement and, in practice, any written agreement.

The debate about the classical requirement is conducted against a background in which stipulation is, for the evidentiary reasons dis­cussed earlier, customarily and probably almost invariably backed up with a written cautio. Already in the pre-classical period Cicero described the contract as something done by writing (Topica, 26.96). And we have already seen how Justinian made the writing virtually conclusive evidence of the meeting of the parties and the exchange of question and answer. Does the practice of writing make set words more or less likely? No certain answer can be given. But I think the rela­tionship of writing and oral formality helps to explain how the theory of a set list of words could have survived till as late as 472.

Justinian might have taken the step of turning stipulation into a written contract in theory as well as in practice. But he did not take that option. He strengthened the evidentiary weight of the cautio. But, subject to re-affirming Leo's abolition of fixed words, he preserved the classical explanation of why the document worked. That is, he affirmed that the cautio drew its efficacy from the oral form which it evidenced.

The most dramatic indication of the orality of stipulation even in Justinian's law is the survival of the rule imposing a specific incapacity on those who could not speak or hear the words. J.3.19.7:

A mute obviously cannot be either stipulator [the one who puts the ques­tion] or promissor. And the same rule has been accepted for the deaf.For the one who stipulates must hear the words of the promise, and the one who promises must hear the stipulator's question. This reason shows that we speak only of those who cannot hear at all, not of those who have difficulty in hearing.

Less dramatic but also indicative of the survival of the classical formality except as concerns the sollemnia ac directa verba is Justinian's continued insistence on perfect congruence between question and answer. Con­gruence, that is, of substance. The promissor must not add to or take away from the substance of the question put to him. J.3.19.5:

Further, a stipulation is void (inutilis) if one fails to answer to the question as put (ad ea quae interrogatus non respondeat). As where the stipulator asks for ten aurei to be given and you promise five. Or vice versa. Or where the stipulator puts the question unconditionally and you promise subject to a condition. Or vice versa. The void case is that in which you express a divergence, as where you answer to a conditional or postponed stipulation �I promise now this very day’; but if you just answer �I promise’ then you are understood implicitly to have promised subject to the same condition or postponement. For it is not necessary when giving the answer to repeat everything expressed by the stipulator.

ii. Why did stipulation not develop into a general law of contract complete in itself?

The question implies that it might have done. On all views the formalities were simple to comply with. What need therefore of separate actions for sale, hire, partnership and so on?

There can never be simple answers to questions which ask why things did not develop differently. But certain factors can be identified which made stipulatio less serviceable than first appears. Most obviously, formality is irksome, however slight and simple. The need to meet (or at least to appear to have done so) constitutes an inconvenience. But this does not explain much since the form would have been eroded away if the potential for generalisation had not been impeded in other ways.

The second factor is that stipulatio was stricti iuris, judged according to strict law. This does not mean much until one makes the contrast with bonae fidei iudicia, trials based on good faith. In trials of the latter kind the iudex had to ask himself, according to the terms of the formula, what was owing ex fide bona. In trials based on strictum ius he had to ask what was owing (sc. according to the ius civile unsupplemented by good faith). A number of consequences followed, of which two are import­ant in the context of this question.

Bona fides provided a basis on which to build up those packages of obligations which fill out the unspoken aspects of common transac­tions. We said earlier that a party’s reliance goes beyond the words used. The evolution of packages of �implied’ obligations is necessary if that reliance is not to be repeatedly let down, creating a sense of injustice, an area in which the law appears deficient. In trials based on strictum ius that springboard was missing and there was no other obvious substitute. You had what the parties had actually said. You could construe the letter of their utterances but you could not easily find a way in for the spirit.

Suppose by stipulatio I promised to build you a boat and then when it was finished it was not well built but altogether badly built. What could the iudex do unless you yourself had stipulated for a particular standard of workmanship? The letter of my agreement required me to build a boat. If it was a boat, that was that.

It is not to be thought that sets of �implied’ obligations could not have been developed without the introduction of bonae fidei iudicia. It might have been done. But the problem was aggravated by the fact that stricti iuris actions were ancient and acquired their character before it seemed possible to launch out from the safe shores of what was said and done into the depths of tacit expectations. So stipulatio, despite being adaptable to any content, remained tied to conservative and skeletal interpretation. It never offered much protection beyond express terms.

The other important consequence of its stricti iuris character was the absence until late in the Republic of equitable defences. This is the other side of sticking to the letter of the agreement. A plaintiff cannot add terms, but a defendant cannot escape from the terms to which, even by fraud or pressure, he has agreed. This is a distinct advantage from the plaintiff’s point of view. But, taking the large view, it adds to the picture of a contract not suited to ordinary commercial life. Too rigid and inflexible. The introduction of the exceptio doli and exceptio metus went much of the way to eliminating this deficiency and redressing the imbalance in this respect between stricti iuris and bonae fidei actions. But by then the pattern had been set. The bonae fidei actions had already been called into being, and the chance, if ever there had been one, of developing all the law of contract within stipulatio had been lost.

It is an interesting fact of comparative legal history that the common law also began life with a contractual action—covenant—which looked well fitted to deal with all the business. �Covenant’ is conventio in Latin, and the writ of covenant simply directed the sheriff to command the defendant to keep his agreement with the defendant in such and such a matter (Praecipe X quod iuste et sine dilatione teneat conventionem suam). At the end of the twelfth century you might have guessed that all the common law of contract would develop under that text, as the scope of the writ was defined. But that did not happen. The common law also found its law of contract so to say at the second attempt, pushing covenant to the sidelines. But the common law’s second attempt produced, as we have seen, another �general’ law of contract. Roman law, choosing not to maximise the potential of stipulatio, embarked instead on the business of exploring specific trans­actions. And this choice was made early. The bonae fidei iudicia may have started to emerge as early as the third century BC.

iii. What limits were there on the scope of stipulation?

The limits on stipulatio were, subject to some special adaptations for this particular figure, the same as are placed on contract generally. The Institutes take the opportunity, under the head of �void stipulations', to state some of these boundaries. The main heads are impossibility, illegality and privity.

(a) Impossibility. There is a distinction between factual and legal impos­sibility. Legal impossibility is not very easy to distinguish from illegality.

A stipulation to do what is factually impossible at the time of the promise is void. So if I promise to give you a dragon, or fly to Crete, I cannot be sued. The same if I promise to give you Stichus who unknown to me is already dead, for it is impossible to convey a dead slave (J.3.19.1). What if the promise is factually possible but subject to an impossible condition? Such conditions offer a choice, whether to ignore them or to suspend the obligation permanently (i.e. render it void). In relation to legacies there was a school dispute, with the Sabinians in favour of validity (G.3.98). But stipulations so conditioned were void. Gaius gives the example �if I touch the sky with my finger' (G.3.98). A negative impossible condition, �if I do not touch the sky', leaves the obligation immediately valid (J.3.19.11).

Subsequent impossibility is a more complex topic. There is no general logic to the effect that the obligation must be discharged. It depends on the law relating to the particular transaction, and, since the commonest cause of supervening impossibility is destruction of the subject-matter, on the rules relating to the case to be shown by the party seeking to be released. Logic allows him to be strictly liable however careful or, at the other end of the spectrum, liable only if he deliberately brought about the impossibility. In stipulations the question was whether he was in any way at fault. If he was then the supervening impossibility would not save him: he would be liable as though he had refused to perform.

Legal impossibility is exemplified by promises to convey to the promisee something which is already his. Or to convey to him some­thing which is incapable of or removed from private ownership. As, to convey a man who is free, not a slave; or to convey land dedicated to the Gods (locus sacer vel religiosus). These are all void. And you cannot promise to convey a free man if and when he becomes a slave (J.3.19.2).

(b) Illegality. Stipulations to perform immoral or illegal acts or to pay for such acts were void. Justinian gives the simple example of a stipulation to commit homicide or sacrilege (J.3.19.24).

(c) Privity. There are two aspects to this. Attempts to put third parties under obligations, to impose burdens on them. And attempts to benefit third parties, to give them rights. The general rule is that neither is possible. I cannot promise that another will do something, and I cannot promise you to confer a benefit on another. Both these negatives can be circumvented, not contradicted, by the use of penal stipulations. �I promise to give you io if X does not send you 5.’ And �I promise to give you io if I do not give X 5.’ This circumvention only worked because Roman law did not regard penalties as unlawful.

The ban on imposing burdens on third parties needs little explan­ation. The obligation generated by contract is generated by consent, and if the third party has not consented to the burden, that is an end of it, at least in the absence of some strong policy operating on the relationship between promissor and third party. It is more difficult to explain the ban where the third party does consent and is actively seeking to use the promissor as an agent. The Roman attitude to agency will be considered in relation to mandate.

The ban on creating rights in a third party is more difficult to explain. If I promise you that I will benefit X, there is a general difficulty in giving X an enforceable claim. What would be the relationship between his right to claim against me and your right to control the promise made to you? Suppose that you wanted to let me off and he wanted to sue. It is your promise, even if his disappointment. This clash can explain why a system may turn its back on the third party. But it does not quite explain the nullity of a stipulation in favour ofa third party (G.3.103; J.3.19.19). Nullity is a bit much. Why should you not sue me if I break my promise to benefit X? Cutting off his claim does not logically mean cutting off yours.

This nullity gave rise to a problem in relation to promises to pay �X and Y’ and �X or Y’, where X is promisee and Y is third party. �X or Y’ is all right. Y can be paid but cannot sue. �X and Y’ divided the schools. The Sabinians said X could claim the whole sum. Justinian adopted the Proculian rule: X could claim half the sum, Y nothing.

The explanation of the nullity may have to do with a difficulty of pleading. The formula in the classical procedure directed the iudex to ask himself if the defendant ought (at civil law) to give the plaintiff whatever it was. Answer invariably negative if the promise had been for a third party. On the other hand this reasoning only applies to the condictio, not to the actio ex stipulatu.

This approach may explain how Justinian is able to uphold stipula­tions for third parties (with respect to the promisee, not the tertius) when the promisee has an interest in the performance to the third party, even though he subscribes to the nullity doctrine (J.3.19.20). The view may have emerged even during the classical period that a promise to benefit a third party (even to dare to a third party) could be regarded as a service for the promisee, allowing the actio ex stipulatu to go, so long as the promissor had some pecuniary interest capable of being assessed. At all events the end result is sensible. The promisee can sue so long as he has an interest, notwithstanding assertions of nullity.

There is one major exception to the rightlessness of a named third party. A stipulation for performance to one's paterfamilias or owner was good. But this only reflects the concentration of rights in the person of the paterfamilias. We will recur to this in the discussion of agency, under the contract of mandate.

One further special case needs to be mentioned. Rights acquired by stipulation are transmissible to your heir. He steps into your shoes. That does not break the principle of privity. He is you, by succession. On the other hand you could not obtain a promise in favour of your heir. You could not validly propose a stipulation �Do you promise to convey to my heir?' Gaius says (G.3.100) inelegans esse visum est (it has seemed offensive to principle) for an obligation to take effect first for the person of the heir. There were odd consequences, because different words could have the offensive effect. So you could not take a promise for payment �after my death'. That is obvious. But you also could not have one for payment �the day before I die'. Because only after death would the day before become apparent. �When I am dying' or �as I die' were all right. But the logic of that looks odd, since again only death would show that I was dying. But perhaps �the day before' is more difficult, because of the precise timing. The general drift may be apparent before the event, though not the hour and day.

At all events Justinian changed the rule and allowed the obligation to begin in the person of the heir, sweeping away all this scrupulosa inquisitio (J.3.19.13; C.8.37.11). It is arguable, all the same, that he meant to leave invalid for impossibility promises which plainly envisaged giving and receiving after death: �Do you promise to give me 10 after I am dead?'

iv. Special applications of stipulation

Subject to these general inhibitions, anyone could use stipulation for anything. But there were one or two special contexts which need to be noticed. There is a great deal of law here. This will only serve to point at it, not to explore it.

(a) Stipulations in litigation. In a number of situations you could apply for a compulsory stipulation, i.e. a stipulation imposed on your adver­sary by the court, either praetor or iudex according to the circum­stances. And, not very dissimilarly, the praetor would sometimes impose a stipulation as a condition of offering some other relief or to regulate the business of litigation itself. A party who refused risked further sanctions, often missio in possessionem (a decree authorising the other to seize his property). On the other hand, once the promise had been given the promisee then had a remedy against the promissor just as though an ordinary formal contract had been made between them.

A good example comes from the touchy subject of relations between neighbours. Suppose your neighbour’s house was in such a state that you expected that you might soon suffer loss yourself if he let the trouble go unattended. Or suppose he started up some new operation such as a smoky factory which injured the amenity of your land. In these cases you would apply for a formal promise to pay for loss (the cautio damni infecti ) or to undo the new work so far as unlawful (the cautio ex operis novi nuntiatione).

(b) Personal security. If you propose to lend or otherwise give credit to someone, or to extend an existing credit, you may want security. If you take a right against a thing, say a house or a ship or a ring, that is called �real security’, with �real’ used in its res sense. The mortgage is the universally familiar modern example. We will encounter real security in the discussion of the contract of pledge (pignus). On the other hand you may take a right against a person, some friend or supporter of the principal debtor willing to make himself answerable for the same debt. We call such secondary debtors �sureties’ or �guarantors’.

Stipulatio was the main but not the only Roman way of taking personal security. The technique was to put a question to the guarantor asking him whether he would promise idem, the same performance as the principal debtor. Making that promise, the guarantor would become a co-promissor with the principal. Generically, all stipulatory guarantors are thus called adpromissores.

The importance of the subject is marked by an unusually high degree of legislative interference, and the picture is made still more complex by the fact that the consequences of suretyship were regulated differently according as the sureties assumed their liability using the verb spondeo, fidepromitto orfideiubeo. Sponsors and fidepromissors were the oldest types, applicable in support only of obligations verbis while fideiussors could validly guarantee any kind of obligation. By Justinian only fideiussio survived. And, in accord with the post-Leo stipulation, the actual word used was immaterial.

The main practical questions which arise for the law are these: Can the surety be sued before the principal? If the surety pays, can he recover from the principal? If there are two or more sureties, can one be made to pay and, if so, can he turn against the others?

The order of attack In the classical law there was no formal reason why the creditor should not demand performance from a surety even before approaching the principal debtor. The only restraint was imposed by the law of delict. A creditor who turned unnecessarily to a solvent debtor's guarantors risked having to pay the debtor damages for contempt-iniuria for the injury to his personality inflicted by the imputation of insol­vency. If it came to actual litigation on the debt the creditor had to proceed carefully because (there being but one obligation) joinder of issue against one party, whether principal or surety, would extinguish everything but the right to carry that issue to trial. But this extinctive effect of litis contestatio did not mean that the creditor had to go against the debtor first. He would be a fool to do so if the debtor were insolvent. Justinian changed this. He first abolished the rule that joinder against one released all and then, in a Novel, introduced for the sureties the �right of correct order (beneficium ordinis)' by which they could insist on the debtor's being sued first.

Indemnity from principal debtor There was an ancient action, the actio depensi, given to sponsors by a lex Publilia: if the sponsor was not reimbursed in six months he could sue in such a way as to get double damages if the principal denied liability and lost. For other guarantors the normal recourse was by actio mandati. They would have become guarantors at the request of the debtor, and that request or commission will itself have amounted to a contract of mandate between the debtor and his guarantor. Hence the guarantor’s contractual action for reim­bursement. A rare case is not covered by this. Suppose the creditor approached the guarantor himself or the guarantor came forward spontaneously. These facts negative any mandate between debtor and guarantor. But there is a way in which such a guarantor can get a remedy. He has a �right of cession of actions (beneficium cedendarum actionum)’ by which before paying he can demand that the actions which the creditor has against the debtor, and indeed all other remed­ies, be assigned to him. Standing in the creditor’s shoes he could then sue the debtor despite the absence of any legal relation directly between them.

Sharing the burden: contribution This is a problem which only arises when there is a plurality of guarantors. The Roman technique was not to introduce rights of contribution between co-sureties but to limit the liability of each to his aliquot share of the whole principal debt. The history goes back to three Republican leges in the early second century bc, the lex Appuleia, lex Furia and lex Cicereia. But it was reformed and generalised by a rescript of Hadrian. Gaius says that despite the earlier legislation fideiussors remained bound each for the whole sum but that ex epistula diui Hadriani (by an epistle of the now deified Emperor Hadrian) the creditor came under compulsion to sue each for his own share, the share being determined by dividing the debt by the number of solvent sureties (G.3.121). The application of this �right of division (beneficium divisionis)’ was facilitated by the extension in practice of a system intro­duced by the lex Cicereia for sponsors and fidepromissors, by which the creditor was bound to give the surety notice of the number of sureties he was taking (G.3.123). A surety was bound to claim this beneficium if sued. If he did not he could not afterwards complain. But if he obtained cession of actions on payment of the whole sum without litigation, it seems that he could then sue the other sureties (qua creditors) and that it would then be for them to claim the right of division.