The first group of informal contracts were those consensu, four of them.

This second group also has four members. The apparent symmetry is deceptive. The numbers balance but the weight does not. Sale, hire, partnership and mandate between them cover most of commercial life.

All these involve the delivery of a res by one person to another. And it is from the moment of that hand-over that the obligations come into being. If you want to be able to rely on borrowing tomorrow or giving in your case to be stored the next day, you must arrange it by stipulation or in some other way, perhaps by mandate. These four contracts re having nothing to do with such executory obligations. They are only concerned with the consequences after the making of the loan, deposit and so on: not agreements to do them but obligations born of having done them. So the delivery of a res is an important marker and one common to them all.

Perhaps that is what re is meant to mean. The books all say so. But another view is possible, though at first sight less attractive. I think re here means �by conduct'. If it means �by the thing', the res in question is not the coin or the case or the sheep but the business of lending, depositing, pledging and so on. The thing denoted by the names mutuum, depositum and the others. �By the event in the name' and hence �by conduct', �by the conduct of lending'.

This is not madly important. But we might look at some difficulties which arise if we say re means �by delivery of a res'. I will not labour the point beyond two examples. First, Justinian coming to wrongs says this CJ.4.1 p^r.):

In the previous book we have dealt with obligations from contract and quasi from contract. The next thing is to deal with those which arise from wrongdoing.

How shall ex re be rendered? Obviously not �from the delivery of a thing', which does not happen in these stories. �From the thing itself' in the sense of �the event described in the name' is all right: �from theft,' �from contempt' and so on. More generally �from conduct' is also all right, making the same point less explicitly.

The next example is also from delict and may not yet be com­pletely intelligible. The delict iniuria is very diverse in content. Contempts need to be classified in order to be made intellectually manageable. D.47.10.1.1 (Ulpian, 56 On the Edict) gives part of Labeo's plan:

Iniuriam autem fieri Labeo ait aut re aut verbis: re quotiens manus inferuntur: verbis autem quotiens non manus inferuntur convicium fit.

Labeo says that contempt-iniuria is committed either re or by words: re as often as a blow is struck, by words as often as no blow is struck but offensive words are shouted.

There are good reasons for thinking the expansion of the first division, either re or verbis, is textually unsound but that need not detain us here. Re aut verbis: what does re mean? It can mean �by the event itself', it being understood that verbal events are in the other class. Or it could mean �by conduct'.

There may be a way around this kind of evidence. But such as it is it points away from the contract re as a contract �by delivery'. �By conduct (scilicet the conduct in the name of the contract)' seems to me better. And the Institutional scheme �re, verbis, litteris, consensu' reads well and sensibly as �by conduct, by words, by writing, by (mere) agreement'.

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