Ex nudo pacto oritur actio and the form of stipulation
As a consequence of these developments, a significant vacuum had now become apparent within the contractual scheme of Roman law as taken over by the medieval lawyers; for the convenient and universal availability of the stipulation was one of the main reasons why the Romans had been able to maintain the principle of "ex nudo pacto non oritur actio".
It is obvious that this vacuum was bound to be filled by extending the range of enforceable pacta: a process that came to its logical end with the final abolition of the very notion of a pactum nudum. Thus it came about that the modern concept of contract descends, in direct line, from the consensual contracts, not from the stipulations of Roman law.[2810] The medieval stipulation, with its strangely hybrid nature, became part of the glossatorial scheme of vestimenta, sub voce "verbis seu litteris", or "scriptura vel stipulatione".[2811] But the advent of "ex nudo pacto oritur actio" heralded the end of its distinguished career. Some writers, of course, refused to acknowledge the inevitable and stood aghast at any intimation that the contract of stipulation had ceased to exist: "Neque audiendi sum", they urged their readers, "qui stipulationes hodiernis moribus non amplius usitatas esse arbitrantur."[2812] Predominantly, however, the writers of the usus modernus realized that there was no longer any room for a special type of contract "stipulation"; it does not make sense to accept every ("bare") pact as actionable, but to continue to cultivate certain solemnities (albeit not in reality but on the basis of certain more or less elaborate presumptions) which serve to clothe ("bare") pacta with actionability! Such formalities were now pointless; Hugo Grotius referred to "zodanige scherpzinnigheid", which, he noted with approval, had never been accepted "[by] de Duitschen".[2813] But all was not lost. If the stipulation gradually sank into oblivion as a specific form of contract, this did not mean that the whole body of law built up around it by the Roman lawyers had become irrelevant too. In fact, the titles 45, 1 of the Digest and 8, (37) 38 of the Codex continued to be subjected to scholarly debate. For what had happened is described by Groenewegen as a fusion of the law of pacts and of stipulations ("Hodiernis moribus confusa sunt pactorum et stipulationum jura").[2814] Others, as we have already seen, maintained that nuda pacta were as good as stipulations ("hodie... pro stipulatione habe[n]tur").[2815] The consequence was spelt out, very clearly, by Johannes Voet:.. ea, quae de stipulationibus jure civili cauta inveniuntur, etiam ad hodierna pacta transferri debeant."[2816] The rich casuistry, the principles and regulae developed by the Roman lawyers with regard to stipulations were thus preserved, and judiciously channelled, mutatis mutandis, into the mainstream of contractual theory and practice.II.
More on the topic Ex nudo pacto oritur actio and the form of stipulation:
- Ex nudo pacto oritur actio and the notion of causa
- CHAPTER IX. THE SLAVE AS MAN. IN COMMERCE. ACTIO DE PECULIO. ACTIO TRIBUTORIA.
- The framing of the stipulation
- The importance of form and formality
- Verbal contract: stipulation
- The atrophy of the classical stipulation
- APPENDIX III. FORM USED BY SLAVE IN ACQUISITION BY MANCIPATIO, ETC.
- THE ROMAN CONTRACT OF STIPULATION UNDER THE IUS COMMUNE
- The flexibility of the Roman stipulation: range of application
- Towards a generalized form of set-off
- PHYSICAL FORM: DOUBLE-DOCUMENTS
- A legacy (legatum) was a particular form of testamentary disposition whereby the testator left one or more specific objects to some person who was not one of his heirs.
- The foregoing discussion in Part A of moral scepticism and several of its ramifications will form the backdrop of my consideration of aspects of legal theory.
- The Legis Actio Procedure
- The legis actio procedure
- Actio furti manifest!
- Origin of the Actio Serviana
- ACTIO DE PECULIO