From contract verbis to contract litteris

There is one question that immediately springs to mind: but what about the stipulation? This contract verbis, it will be remembered, was the backbone of the contractual scheme of Roman law.^[2801] It was universally applicable; provided only the simple, oral formality was complied with, every lawful agreement could thus be made enforceable.

Under these circumstances it commended itself as an institution which could have provided, par excellence, a foundation for a general law of contract. And indeed, the developments in post-classical law, as a result of which the stipulation was stripped of its formalism and adapted to the practice of the time,^[2802] may be regarded as a step in this direction. In a way, however, this trend was stopped by Justinian who, as we have seen,^[2803] attempted to reconcile the irreconcilable, namely the (classical) theory of an oral transaction and the (contemporary) practice of a written one. Thus, within the Corpus Juris Civilis we find (and, more importantly, the medieval lawyers found) two different historical layers of one and the same institution side by side; and at a time when little interest was displayed in the historicity of the Corpus Juris Civilis, this was bound to create a confusion which was decidedly unfavourable for the survival of the stipulation as a central element of the law of contract.^[2804] The glossators, true to the sources as they were, reaccentuated the requirements of the classical (oral) stipulatio, as they found them, particularly in title 45, 1 ("De verborum obligationibus") of the Digest. Thus, conclusion of the contract was seen to depend on the following five requirements: primo interrogatio, secundo respon- sio, tertio quod interrogatio precedat responsionem, quarto loco quod responsio fiat incontinenti post interrogationem, quinto quod responsio congrua id est intellegibilis.

Of all this, however, one finds very little if account is taken of the way in which the stipulation lived on in medieval contractual practice. Here it was—along the lines of the post- classical Roman tradition—essentially a contract litteris, for the stipulation was usually incorporated into a (notarial) document.^[2805] All the requirements of the oral stipulation were projected into this instrument, whether they had in fact been complied with or not.^[2806] The bridge between theory and practice was established by a number of presumptions, but these presumptions operated only on the basis of specific words and clauses which had to be contained in the document (especially the verb "promittere" as opposed to, for example, "convenire").^[2807] Thus, it was a risky business to "stipulate" by way of "scriptura privata", and the proper drafting of the contract became more and more a matter for professional tabelliones.^[2808] The simple and uncomplicated stipulation, so familiar to every Roman citizen, had finally been turned into an arcanum of notarial practice.^[2809] As such it had lost its appeal as a practically viable and universally suitable cornerstone of contractual theory.

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

From contract verbis to contract litteris

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