Evaluation of the oral formality

The insistence on question and answer with the characteristic repetition of at least a key word (the verb) also made it abundantly clear when a contract had in actual fact been concluded.

In modern law it is often difficult to determine whether certain declarations still form part of the preliminary negotiations or are already intended as a binding offer or acceptance. In Rome a question in which "spondes?" (or a similar verb) was used immediately set an imaginary little warning light flickering, because everybody knew then that, by giving the appropriate answer, he would become contractually bound.^[382] Furthermore, it is probably fair to say^[383] that from a psychological point of view the binding force of a formal oral promise given to the other party in his presence was greater than that of a signature underneath a lengthy and involved document, drafted by the other party: for whilst many people today seem to have an exaggerated reverence for what has been written down, the Roman ideas of fides (supposed to derive from "fit quod dicitur") and Constantia demanded that a man keep his word, whether it was embodied in a document or not.^[384] ^{^[385] ^[386] ^[387] Quite characteristically, Cicero writes: "Fundamentum autem est iustitiae fides, id est dictorum conventorumque Constantia et Veritas."¹³
To us, today, the disadvantages of the Roman form of stipulation are obvious. To start with, this type of transaction was not accessible to everybody; by virtue of the oral formality, deaf or mute people were excluded.¹⁴ Furthermore, the conclusion of a stipulation required both parties to be present at the same time at the same place.¹⁵ This presented no problem at a time when Rome was still essentially a medium-sized country town and when the range of commercial activities of its inhabitants was fairly limited.
But it became increasingly cumbersome with the expansion of the Empire after the second Punic war: even if one takes into consideration that a stipulator could, of course, always send his slaves or sons in power to "represent" him. Thirdly, insistence on the oral form can, in individual cases, lead to harsh results. To deny that a stipulation is valid only because one of the parties had used a wrong word or had sneezed before being able to give his answer might seem inequitable. In fact, we find Justinian pouring scorn upon the subtilitas, scrupulositas and difficult as of the oral solemnities with their rigorous consequences: "multas... ambages scrupulososque circuitus correximus", he said, referring proudly to "nuper legfes] a nobis scriptae]".^[388] ^{^[389] The formalities which enveloped the classical law were not to his liking. Finally, what strikes us as odd is that even though the stipulation was a formal act, the parties were not required to put its content in writing; where we refer to formal acts today, we usually have the requirements of writing, notarial authentication or official certification in mind. The reason is that such documents enormously facilitate proof of the conclusion and content of the transaction; to us this is, in fact, one of the main functions of formalities. The Romans, on the other hand, as far as the development of their rules of substantive law was concerned, were surprisingly unconcerned about problems of evidence. Whether certain allegations could be taken as proven in court and how this was to be done was a matter of concern for the iudex, who was appointed by the magistrate, not for the lawyers, who administered the ius civile. In the case of stipulations, Roman fides seems to have afforded sufficient security for the purely oral promise to become a viable and practical institution of Roman law.'⁷ In this context, one must also take into consideration that sponsio (etymologically descending from (jTTevbiu, to present a drink-offering) had a sacral origin with the promisor being forfeited in case of non-compliance with his promise to the god or goddess who had been invoked.¹⁸ Thus, one can well imagine that many Romans still sensed certain oath-like connotations when using the word "spondeo" at a time when all sacral effects and sanctions had long fallen away. However, during the later Republic a moral decline set in and people were less and less prepared to adjust their lives in accordance with the traditional behaviour patterns based on the old Roman virtues; also, as we have seen in the Gaius fragment quoted above, words other than spondere came to be used—a development largely due to the influence of the increasing number of legal relations with peregrini.
Thus, if we look at the development of the practice of stipulations, we find a gradual rise in the use of written documents.¹⁹ Hand in hand with this went a tendency to relax the rigidity of the old law.²⁰ These two developments will now have to be examined more closely. Whilst their general trend cannot be disputed, it has to be emphasized that many details as to the time when specific decisions were taken and when the classical stipulation started to undergo major transformations are in dispute. Many of the texts in point have been or are still regarded as spurious. It must be borne in mind that Justinian's reform of the law of stipulation is "one of the most imposing that we find in the Corpus Juris".^[390] On the one hand, Justinian tried to save the richness of thought and argument that had been tied up with the classical stipulation; thus, he took over many of the old texts dealing with stipulations.^[391] On the other hand, of course, he had to take account of the large-scale development of the law that had taken place since then, and in his Corpus Juris he had to accommodate the law and custom of his time. In order to achieve this, ^1H On the origin and early history of stipulatio and sponsio, see Okko Behrends, Der Zwotftafelprozess (1974), pp. 34 sqq.; David Daube, "Sponsor and the History of Contract", (1946) 62 LQR 266 sqq.; Rudolf Dull, "Zur romischen Stipulatio", (1951) 68 ZSS 191 sqq.; Jolowicz/Nicholas, pp. 280 sqq.; Kaser, Altromisches ins (1949), pp. 256 sqq.; idem, RPr I, pp. 168 sqq.; but cf. also Pierre Cornioley, "De la 'sponsio' a la Stipulation: procedure et 'contrat'". in: Sodalitas, Scriiti in onote di Antonio Guarino, vol. VI (1984"). pp. 2891 sqq.
Generally on the increased use of writing in Roman law, see Jolowicz/Nicholas, pp. 414 sqq.; Kaser, RPr I, pp. 230 sqq.
"The degeneration of the purely oral stipulation is twofold. On the one hand...
the strictness of the formal oral requirements is relaxed.... On the other hand... the oral stipulation eventually disappears from practical use and gives place entirely to the written. This is, indeed, not degeneration at all, but atrophy. It is, moreover, impossible, and is likely to remain so, to determine how far advanced this atrophy was at any particular period": Barry Nicholas, "The Form of the Stipulation in Roman Law", (1953) 69 LQR 241. ²¹ Riccobono/Kerr Wylie/Beinart, p. 84. Cf. Levy. Obligationenrecht, p. 53: "Fasziniert von der Mission, als Restaurator der goldenen Zeit des romischen Rechtes in die Geschichte einzugehen, und tief beeindruckt von der lichtvollen Durcharbeitung, die einst der Verbalvertrag empfangen hatte, versucht er durch weite Strecken, die klassische Analyse zu retten." (Fascinated by the mission to go down in history as the restorer of the golden age of Roman law and deeply impressed by the inspired manner in which the verbal contract had been shaped, he sought to a large extent to save the classical analysis.) he used fictions and interpolations. How far he went in the use of the latter method, however, is very difficult to determine.
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Evaluation of the oral formality

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