Relaxation of the word formalism

(a) The words to be used

We have already seen that one of the forms of stipulation (namely the one characterized by the use of the word "spondere") was of sacral origin.

Peregrines could use the other verbs mentioned in Gai. Ill, 92; these then became available to Roman citizens too. There is some dispute as to how far this relaxation of the word formalism went. According to Nicholas,^[397] the list given by Gaius represents a numerus clausus: only those verbs could be used to conclude a valid stipulation. One would then have to take "veluti" to mean "as follows" and not translate it as "for example". That is not impossible, but it is unlikely. The prevailing opinion^[398] therefore maintains that Gaius, as a good teacher would, merely gave a couple of examples, but that any other verbs could also be used. Indeed, it is difficult to see why "facias?" "facio"—should have been allowed, but not a more specific term describing what type of work had been promised in the individual case.

Stipuiatio

73 used.^[399] Of course, question and answer had to correspond, but it seems not even to have been imperative that they had to be in the same language. Thus, for example, the question might have been "0^A10X07 sic?", the answer the Punic equivalent to "promitto".

(b) Unitas actus

Apart from the verb as the key word, unitas actus and correspondence of question and answer were essential elements of the Roman stipulation. Both gave rise to discussions too. As to the first, the rule is stated by Venuleius: "Continuus actus stipulantis et promittentis esse debet... et comminus responded stipulanti oportet, ceterum si post interrogationem aliud acceperit, nihil proderit, quamvis eadem die spopondisset."^[400] The compilers, after "debet", added a little gloss: "ut tamen aliquod momentum naturae intervenire possit." One is left to speculate what "a short interval dictated by nature" may have implied: was the promisor allowed to spend a penny before he gave the answer? Or did it refer, for instance, to a sneeze or a bout of coughing? Of course, formalism would have been carried to ridiculous extremes had provision not been made for the latter type of incident. So the promisor was granted a moment of reflection; even a witticism or an elegant quotation was allowed to intervene, so that, for instance, a bit of Vergil that had been recited between question and answer^[401] was passed over indulgently as "supervacuus". According to D. 45, 1, 1, 1, Ulpian seems to have gone so far as to accept an intervening absence of the stipulator, provided he had been away only for an "intervallum medium" before returning to hear the answer. But when is an intervallum "medium"? Did it matter whether any other affairs were attended to in the meantime? According to Venuleius, that did invalidate the stipulation; otherwise, that is, where no other business was conducted, he seems to imply that the intervallum might extend to a full day.^[402] But this limit is as arbitrary as any other would have been. It is very likely that both Ulpian's medium intervallum and Venuleius' one-day period were interpolated.^[403] Classical law probably still required continuous presence of the parties; possibly the question was beginning to be disputed.

(c) Correspondence between question and answer

As far as the correspondence between question and answer is concerned, it has been mentioned that the reply could have been in one word. By the time of the later Republic, the promisor did not have to repeat everything said in the question. Throughout the classical period, however, he had to use the same verb as the stipulator. Simply to give a nod of assent was not sufficient; and that Ulpian should have allowed the answer "quid ni" is not credible at all.^[404] It was only later that the formal correspondence came to be watered down to that extent. Also, of course, the promisor was not allowed to change the terms of the contract, even though he might have used the correct verb; therefore, if the question had been "intra calendas quintas dabis?", the answer "dabo idibus"^[405] was no good. Similarly, the promisor could not introduce a condition ("si illud factum erit, dabo") which had not been part of the question ("dabis?"). But what if the stipulator had asked for the delivery of Pamphilus and had received the answer "Pamphilum et Stichum dabo"? Strictly speaking, question and answer did not correspond. Yet, to regard the whole transaction as invalid seemed to be unduly strict, even to the classical lawyers. After all, as far as Pamphilus was concerned, there had been both question and answer. Thus, by way of fiction, the one stipulation was seen as two separate stipulations, the one referring to Pamphilus and the other to Stichus. This way of looking at things was summed up in the rule "tot stipulationes quot res'"^[406]—in the law of stipulations, it is to be assumed that as many stipulations have been concluded as there are objects involved. Therefore, whilst the transaction regarding Stichus failed owing to the lack of a question, there was a valid stipulation with regard to Pamphilus.^[407] It is tempting to apply a similar type of reasoning where the discrepancy between question and answer related not to the number of objects involved but to a sum of money:

"Si stipulanti mihi 'decern' ru 'viginti' respondeas, non esse contractam Obligationen! nisi in decern constat, ex contrario quoque si me 'viginti' interrogante tu 'decern' respondeas, obligatio nisi in decern non erit contracta: licet enim oportet congruere summam, attamen manifestissimum est viginti et decern inesse."^[408]

The argument is here not "tot stipulationes quot res", but "in maiore minus inest", a rather plausible maxim which we come across repeatedly in the Digest.^[409] Whether it was applied in classical law in a case such as this is, however, extremely doubtful; for, in contrast to the previous example, where Pamphilus was mentioned in both question and answer, there is no longer any formal correspondence where the question is for ten and the reply for twenty, or vice versa; on the other hand, there is, however, substantive correspondence concerning part of the performance.

4.