Stipulatio

Stipulatio was a unilateral contract that could be employed in various ways in private or procedural law. It consisted essentially of a formal question and an affirming answer that initially had an extremely formal nature, but its forms were progressively simplified and broadened in scope.

The contract required a brief and simple ceremony: a question by the creditor/promisee (stipulator) containing the terms of the proposed promise and a positive reply by the debtor/promisor (promissor) accepting them. The same verb had to be used in both the question and the answer, such as “spondesne centum dare?” (“do you solemnly promise to pay one hundred?”)— “spondeo” (“I promise”). Originally, when stipulatio was accessible only to Roman citizens, the verb spondere had to be used; but in later times, when the institution was made available to foreigners, other and less formal verbs of promise could also be employed (such as promittere, fideipromittere, fideiubere, dare, facere) while even Greek equivalents of the Latin words were acceptable. Ultimately, any language could be employed as long as the answer followed the question immediately and both corresponded. As this suggests, stipulatio could only be concluded where the parties were in each other's presence (inter praesentes),^{^[719]} and where the promisor responded positively to the whole question and without qualifying his promise by making it subject to a condition or time clause.^{^[720]}

Stipulatio was the most important contract in Roman law because it was not confined to particular transactions but could be used to render any kind of lawful performance binding.^{^[721]} For instance, this form of contract could be employed for the transfer of ownership over a sum of money or some other object (e.g.

next year's crop); the carrying out of certain work (e.g. the construction of a building); the constitution of a dowry; the assumption of a guaranty for another person's debt; the establishment of certain rights on another's property; the transformation of an existing obligation into a new one (novatio); and various kinds of promises in the course of judicial proceedings.^{^[722]} As a unilateral contract, stipulatio gave rise to only one obligation and one corresponding right: the creditor (stipulator) had a personal right against the debtor (promissor) while the latter's duty was to perform in favour of the creditor exactly what had been stipulated.^{^[723]} The creditor could enforce his personal right with the actio ex stipulatu, if performance was undetermined or uncertain (incertum); and with the condictio, if performance was specific or certain (certum).^{^[724]}

It should be noted that, initially, a promise made through stipulatio engendered an enforceable obligation if the relevant formalities (i.e. the oral exchange of question and answer) had been performed, irrespective of whether or not there was a valid ground or cause (causa) for the obligation. As stipulatio gave rise to a iudicium stricti iuris, the creditor had only to prove the fact that the requisite formalities had taken place. This means that an obligation created by stipulatio would be deemed binding even if, for example, the debtor had been forced to consent by violence or fraud. In the course of time, however, the praetor granted the debtor remedies (exceptio doli, metus causa, pacti conventi) that could nullify the effect of stipulatio if the obligation the debtor had assumed was not grounded on a just cause. It should be noted, further, that when performance became impossible after the conclusion of the contract, the debtor was in principle discharged from liability. In time, however, a clause was implied by which the debtor undertook that performance would not become impossible owing to his own actions.

As previously noted, it was recognized that a positive act or default (mora) on the part of the debtor perpetuated the obligation (factum debitoris perpetuat obligationem, mora debitoris perpetuat obligationem). As this suggests, in the case of supervening impossibility of performance the debtor could not be held liable except where factum or mora debitoris applied. In the latter case, the creditor could bring an action against the debtor for the monetary value of the impossible performance.

During the republican era, the practice of reducing the stipulatio to writing for the purposes of evidence was introduced^{^[725]} and such practice was very common under the Empire. Furthermore, witnesses could also be used for evidentiary purposes yet neither the presence of witnesses nor the recording in writing was deemed necessary for the validity of the stipulatio. Although the written document was initially regarded as only a piece of evidence, in the course of time more emphasis was placed on the written than the oral form of the contract thereby rendering obsolete the use of the same verb in the question and answer sequence.^{^[726]} During the later imperial period, a written promise to pay a sum of money or admission of indebtedness was the most frequently used form of stipulatio and the law of Justinian fully recognized this type of contract. However, the relevant obligation was held to arise from the words since stipulatio always remained a contractus verbis requiring the presence of both parties at the time of its conclusion.^{^[727]}

In addition to the main form of stipulatio discussed above, Roman law acknowledged accessory stipulationes as illustrated by the adstipulatio and adpromissio.

The adstipulatio involved two or more creditors (stipulatores), one acting as a mandatary or agent of the others and one promissor.

In this case the main stipulatio (between the principal stipulator and the promissor) was reinforced by an additional stipulatio in which the debtor promised the same thing to another person (adstipulator). In relation to the debtor, the adstipulator was virtually a principal but in relation to the original stipulator he was only an accessory creditor or mandatary remaining liable to the latter for anything he had received or forgone. The adstipulator was entitled to sue on his contract in the case of non-payment, but the first creditor or his heirs could initiate the actio mandati to recover what he received from the debtor.^{^[728]}^{^[729]}

In contrast to adstipulatio, the adpromissio involved a plurality of debtors/ promisors (instead of creditors) where one or more of whom was the mandatary of the principal debtor. In this context, the original stipulatio (between the stipulator and the principal promissor) was reinforced by a separate stipulatio whereby a second promissor (now referred to as adpromissor) promised the same thing the principal promissor had already promised. The main stipulatio might be followed by stipulationes from several fresh promisors. The adpromissores were as liable as the principal debtor, each for the whole debt (in solidum), while the discharge of the debt by the principal or any one adpromissor released the whole group, principal and adpromissores. The adpromissio was thus a method of creating suretyship by stipulation. In the classical period there were three forms of adpromissio: sponsio, fidepromissio and fideiussio¹⁹ In the course of time the two oldest forms, sponsio and fidepromissio, disappeared and by the time of Justinian’s reign the only means of creating suretyship by stipulation was fideiussio.^{^[730]}

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

Stipulatio

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