The atrophy of the classical stipulation
(a) The use of documents (with evidentiary function)
Back to the stipulations! For as long as Rome and Roman tradition were dominant in the application and development of the law, the basic structure of the stipulation remained unchanged, even though, as we have seen, various concessions were made to facilitate its use in commercial practice.
The degeneration (or atrophy) of the classical1.3 Cf. Chitty on Contracts, vol. I, nn. 1181 sqq. As is pointed out in n. 1183, many authorities cannot easily be reconciled with these principles. The confusion in the law of severance (which does not really commend itself for reception purposes) seems to be attributable on the one hand to the fact that the courts have traditionally distinguished between promises rendered illegal by statute and promises illegal at common law ("The statute is like a tyrant; when he comes he makes all void; but the common law is like a nursing father, makes void only that part where the fault is and preserves the rest": see Twisden J, in Maleverer v. Redshaw (1669) 1 Mod. Rep. 35 sq.); on the other hand, it is attributable to the tendency of certain tests "to crystallize into a firm rule of law, divorced from the underlying considerations of public policy which originally inspired [them]"—cf. esp. the rule that a consideration which is partly illegal can never be severed: Norman S. Marsh, "The Severance of Illegality in Contract", (1948) 64 LQR 230 sqq. (231), 347 sqq.
1.4 Thus, English law places less emphasis on the (presumed or real) intention of the parties: cf. Marsh, (1948) 64 LQR 230 sqq.
® Cf. e.g. Attwood V. Lament [1920] 3 KB 571 (CAI at 577-8.
® The problem of quantitative severability of contracts: cf. Zimmermann. Moderations recht, pp. 19 sqq. and passim; contra: Johannes Hager. Gesetzes- und sittenkonforme Auslegung und Aufrechterhaltung von Rechtsgeschäften (1983"); Alfons Burge.
Rechtsdogmatik und Wirtschaft—Das richterliche Moderationsrecht beim sittenwidrigen Rechtsgeschäft im Rechtsver- qleich—Bundesrepublik Deutschland—Schweiz—Osterreich—Frankreich (19871.67 Lord Moulton, in Mason v. Provident Clothing and Supply Co. Ltd. [1913] AC 724 (HL] at 745. stipulation,[433] in the course of which the oral formality gradually lost all significance, came about under the influence of commercial practice in the Hellenistic provinces. Even in classical Roman law already a document embodying the content of the stipulation was usually drawn up.[434] Such a document had a purely evidentiary function and was neither required for the validity of the transaction nor could it replace the oral exchange of question and answer.[435]
Lay people tend to attach greater significance to written documents than these deserve from a legal point of view: that was probably as true in imperial Rome as it is today. Hence the belief started to gain ground that the recording of the transaction was essential for its validity. [436] This belief was influenced by the obligatory effect of writing in the Hellenistic East and especially by the Greek practice of drawing up instruments of indebtedness[437]—instruments which could be enforced in Roman courts too.[438] It was further supported by the practice of draftsmen and notaries to attach a stereotype "stipulatory clause" to their documents.[439] If, for instance, we look through the Egyptian papyri, we find that after the enactment of the constitutio Antoniniana[440] this clause (Kai eT7"epiorri"9e ic co/jioX5-yncTa—interrogatus spopondit) became an essential element of the documentation of legal transactions,[441] its purpose obviously being to render the obligation enforceable according to Roman law.[442]
(b) Gradual conversion of the stipulation into a written contract
Nevertheless, the late classical lawyers still maintained the oral nature of the stipulation, even if increasingly as a matter of theory.
If, at the end of the document, it had been indicated that question and answer had been properly put,[443] [444] [445] [446] [447] [448] [449] [450] [451] [452] there was no reason for the courts not to accept this as true, unless the contrary was positively proven. The document thus provided the basis for a (factual) presumption that the oral formality had been complied with. Papinian (himself probably born in the East) went even further: "Licet epistulae, quam libello inseruisti, additum non sit stipulatum esse eum cui cavcbatur, tarnen, si res inter praesentes gesta est, credendum est praecedcnte stipulatione vocem spondentis secutam.1,79 Here the letter did not even mention that oral question and answer had been given. Yet, as long as the transaction had taken place inter praesentes, on the basis of the promise being put down in writing, it was accepted that a stipulation had been concluded! Thus, in actual practice, the oral formality was increasingly neglected and the stipulation was largely converted into a promise in writing.[453] Of course, it was still open to the debtor to prove that the formal oral act had not in fact taken place; but apart from showing that it could not have taken place (e.g. because one of the parties was not present at the alleged time and place), such proof of the negative is notoriously difficult.This fundamental structural change in the nature of the stipulation was formally recognized in the fifth century. Even though his words leave some room for interpretation, it is today widely accepted that Emperor Leo dispensed with the old Roman question-and-answer ritual which by that time must have seemed somewhat atavistic: "Omnes stipulationes, etiamsi non sollemnibus vel directis, sed quibuscumque verbis pro consensu contrahentium compositae sint, legibus cognitae suam habeant firmitatem.
"[454] The words no longer mattered; of importance was only that the parties had reached consensus at the same time and the same place. The sole remaining ground on which this "stipulation" could still be invalidated was that either of the parties (or both of them) had not been present. In the course of the next fifty years this obviously proved to be a loophole through which, in the words of Justinian,[455] litigious men would try to escape liability, maintaining—after a while—that either they or their opponents had been absent when the contract was concluded. Justinian tried to curb undesirable lawsuits ofthat nature and therefore provided for a strong presumption: "... tales scripturas, quae praesto esse partes indicant, omnimodo esse credendas."[456] This could be refuted only if it was shown "... manifestissimis probationibus et melius quidem, si per scripturam,.. ostenderit"[457] that the parties had not been in the same town on the day the instrument was executed.[458] Thus he substituted "the mere possibility that the parties may have been present... for the material fact of their presence".[459] In a way, therefore, one can say that Justinian's legislation falls in line with previous developments: for all practical purposes the stipulation had now been converted into a written contract. In the practice of his time the formal oral stipulation no longer existed.[460] [461] And yet, as has been pointed out already, in order to preserve the wealth of ideas from the classical law of contract, Justinian had to take over into his Digest—as if they still represented the law of his time—many texts based on the oral formalities. He bridged that gap by way of a fiction: if the parties had put their transaction down in writing and had indicated in this document that both parties had been present, then, unless it could be proved that one of the parties had in fact been absent from the town for the whole day, the promise was taken to have been given orally. With regard to his theoretical conception of a stipulation, Justinian therefore fell behind what had been accepted by Leo. By somehow trying to reconcile the irreconcilable (i.e. classical theory and modern practice)88 and by admitting texts and enactments from different stages of the development into his Corpus Juris Civilis, he left the law of stipulation on a rather discordant note in this enactment.[462] [463]6.
More on the topic The atrophy of the classical stipulation:
- The framing of the stipulation
- Verbal contract: stipulation
- Ex nudo pacto oritur actio and the form of stipulation
- The flexibility of the Roman stipulation: range of application
- 1. The typology of condictiones: classical or post-classical?
- THE ROMAN CONTRACT OF STIPULATION UNDER THE IUS COMMUNE
- Classical and post-classical compromissum
- Changes in post-classical law
- The end of classical jurisprudence
- Post-classical compilations of ius
- Classical Roman law