Literal Contracts

Literal contracts (contractus litteris) were contracts constituted by agreement and a certain form of writing. Brief references to this type of contract are found in both the Institutes of Gaius and Justinian’s Institutes, but the literal contract of Gaius was very different from that of Justinian.^{^[731]} Indeed, the old contractus litteris had fallen into disuse long before Justinian’s time^{^[732]} and was to a large extent replaced by the practice of giving an acknowledgment of an obligation in a written instrument.^{^[733]}

The old form of contractus litteris referenced by Gaius was a negotium stricti iuris and involved an obligation to pay money enforceable by means of the actio or condictio certae pecuniae.

Much of the detail is uncertain, but it is clear that this contract was created by an entry (nomen transcripticium) in a creditor’s ledger or account book (codex accepti et expensi) of a fictitious payment to a debtor. There were two entries (transcriptiones) of this nature: a re in personam and a persona in personam. The first occurred when an existing debt between the parties was entered and thereby transformed into a new debt based on a contractus litteris. Where the previous claim was based on a negotium bonae fidei, this gave the creditor the advantage of a claim based on a stricti iuris contract and pursuable by means of the actio or condictio certae pecuniae. The second came to the fore when a debt still due was entered as discharged and an equivalent sum was entered as being owed by another person who thus became liable for the debt of the former debtor. This might incidentally also have the effect of transforming an earlier obligation into an obligation litteris, but its primary purpose was to substitute one debtor for another.^{^[734]} As the above description suggests, the contractus litteris was in essence a form of novation (novatio) whereby one obligation was terminated and superseded by another.^{^[735]} As compared with stipulatio, this form of contract was very limited in scope (it was available only for money-debts)^{^[736]}^{^[737]} but had an important advantage: it could also be concluded inter absentes.¹⁶⁶

The form of literal contract based on the nomina transcripticia was the only written contract known to Roman law.

It presupposed a special system of book-keeping, and when this system fell into disuse the literal contract disappeared. However, Gaius recounts that in Eastern provinces of the Empire (where Hellenistic legal practices prevailed) other forms of written contract were in use, namely the syngraphe (a witnessed document in duplicate signed and sealed by both parties and deposited with an official) and the chirographum (a promissory note written and signed by the debtor and delivered to the creditor).^{^[738]} In Roman law such documents were considered only as evidence of a previous stipulatio or some other transaction, while the nature of such a transaction was not altered by it being reduced to writing.

Even though the old contractus litteris had ceased to exist long before the time of Justinian, the compilers of his Institutes invoke reference to what they claim to be a new literal contract. The reference elaborates the practice of giving an acknowledgment of a debt in a written document. Such document might record a debt created by means of stipulatio or mutuum, although it appears that only the latter was addressed in the Institutes. In principle, this practice was evidence of mutuum unless the document could be construed as a promise to repay a loan and thereby considered as evidence of a stipulatio. A plausible scenario is that no money had in fact changed hands. If the alleged creditor sued for the money, the alleged debtor could raise the exceptio non numeratae pecuniae (i.e. the defence that the money was never paid to him) that reversed the ordinary burden of proof and required the creditor/plaintiff to prove the debt independently of the document. This procedural rule was very beneficial to the alleged debtor and so, to prevent abuse of the defence, a time limit was introduced that was set at 2 years in Justinian’s time. After this period had expired, the exceptio was no longer available to the alleged debtor who was therefore obliged to pay.^{^[739]} But Justinian’s jurists found it difficult to assert that the debtor’s obligation arose from a mutuum as there may not in fact have been any such contract at all.

Therefore the jurists used the presumption that the obligation arose from the document. However, the general view among commentators is that in such a case the debtor was not, strictly speaking, bound by the document itself and that this was not therefore a contractus litteris; the document actually constituted evidence, which the debtor was no longer allowed to call into question, of a mutuum. In other words, if after 2 years the law derived from the mere existence of the document an irrefutable presumption that its contents were true, it seems correct to postulate that the debtor was bound by the writing. This interpretation, however, does not mean that his obligation arose from a literal contract.

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Literal Contracts

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