Justinian's Contract Litteris

Though expensilatio had long since disappeared, Justinian retained the category of contracts by writing. But he did not put much in it. The document to which he refers in J.3.21, De litterarum obligatione, is one in which the defendant has acknowledged a debt.

The normal role of such an I.O.U., in Justinian's time and before, was evidential. The document evidenced the making of a loan. Against the document it would be difficult to disprove the making of the loan. But not impossible, either in fact or law. An inveterate malpractice of lenders is to overstate the amount of the principal sum lent. The documentation of the loan says 100 were lent but only 80 are actually paid over. The effect is to give the lender a premium, something over and above any interest he may arrange. Against this practice imperial constitutions, starting in Caracalla's reign, introduced the protective mechanism called the querela non numeratae pecuniae. This had two elements. First, a defence obliging the lender to prove that he had paid over the full amount of the loan. Second, a claim by which the borrower could recover the false document. These were subject to a time-limit which varied. Justinian took it down from five to two years: J.3.21; C.4.30.14.

Suppose that the time for the querela non numeratae pecuniae has passed. The plaintiff has a document acknowledging a loan which was never in fact made. Further, the document cannot be viewed as evidence of the making of any other contract and, in particular, not of a stipulatio. Here the defendant is going to be caught by the document itself. It is in these circumstances that Justinian says that �even today' one can be bound by a writing.

This looks like a trick. The writing evidences the loan. It derives its force from the practical difficulty of rebutting the evidential inference which it purports to support. We know, because we have been told, that the loan was not made. But in court the document will work because that crucial fact will not be known. It can be said with reasonable certainty that the defendant's difficulty is practical, not legal. He can try to rebut the document. If he could show the loan had not been made he would be exonerated. Only it is difficult to prove without the onus-shifting querela.

So it seems that Justinian has elevated a mere practicality of evidence so as to pretend that there still is a contract litteris. Why? Part of the answer may be that he did not want to depart from the classical pattern. But I do not think that goes the whole way. Equally or more important is the fact that in practice Justinian himself had done much to enhance the role of writing in the making of contracts. This had been done without technically adopting the position that the writing was disposi­tive. Nevertheless in practice he had made documents so important that, of all the classical categories of contract, none would have been more oddly or incongruously omitted from those �by writing'. It would have been stranger to omit it, a more striking misrepresentation, than to retain it with doubtful content.

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