The flexibility of the Roman stipulation: range of application
Contrary to Germanic law, Roman law displays a remarkable inclination towards clarity and simplicity.[500] This is quite obvious if one looks at the formal transactions of classical Roman law.
There was a notable restraint in developing new forms. In general, existing forms were used and, if necessary, adapted, extended or made—with or without modification — to serve new purposes. Thus Ernst Rabel has coined the term "nachgeformte Rechtsgeschäfte"*[501] (transactions shaped in the old mould), and one has only to think of in iure cessio and mancipatio for a whole variety of examples: in iure cessio constituted a ritual imitating legal proceedings in the course of which the defendant acknowledged the plaintiffs allegations, and it could thus be used to effect a transfer of certain rights between two parties; mancipatio nummo uno, essentially an imaginary cash sale, could conveniently be employed to become, for example, the main form of making a will. In the case of stipulatio, its usefulness and flexibility made it the cornerstone of the Roman contractual system, a cornerstone which, incidentally, has no parallels in other historical legal systems.[502] As it was their form and not their content upon which the legal effects of stipulations were based and as this form was simple, clear and unspecific (i.e. not stamped by the peculiarities of specific types of transactions which they might have been designed to accommodate), stipulations were apt to be employed for very different purposes; in fact, they could be made to accommodate everything that could conceivably be the object of a contractual obligation: dare, facere, praestare (as long, of course, as such content was not illegal or immoral).[503] [504] [505] [506] in the beginning there was possibly only the stipulation for a certum, which was enforceable by means of a condictio (or: actio certae creditae pecuniae) as long as certa pecunia was involved, and by means of a condictio certae rei as far as specific objects or a certain quantity of fungible things was concerned. The formula of the condictio was simply: "Si paret Nm Nm A° A° decern milia dare oportere, iudex Nm Nm A° A° decern milia condemnato, s.n.p.a." In the case of the condictio certae rei the intentio did not contain a sum of money but, for example, "tritici Africi optimi modios". Thus, because of "omnis condemnatio pecuniaria", the iudex had to be directed in the condemnatio to estimate the pecuniary value of the claim ("... quanti ea res est, tantam pecuniam.. But once this discretion of thejudge was recognized, there was nothing in principle opposed to admitting stipulations for an incertum: stipulations where even the object of the claim was not at all fixed, but was left for judicial determination. On the basis of such an actio ex stipulatu, thejudge had to condemn the defendant in "quidquid ob earn rem Nm Nm A° A° dare facere oportet".131 An example is discussed in Ulp. D. 45, 1, 75, 4: "Illud dubitationem recipit, si quis id, quod ex Arethusa ancilla natum erit, aut fructus, qui in fundo Tusculano nati erunt, dari sibi stipulatus sit, an certum stipulatus videatur, sed ipsa natura manifestissima est incerti esse hanc stipulationem." Here the stipulation was "Id quod ex Arethusa ancilla natum erit {fructus qui in fundo Tusculano nati erunt), dari spondes?" "Spondeo". Not only the estimation of the pecuniary value of the object but the object itself had to be determined before judgment would be given.Thus the scope of the contract of stipulation was immense indeed.132 As Roman law never recognized the general principle of "ex nudo pacto oritur actio",133 the stipulation was the means to achieve what could not be achieved by formless consent. But even where informal contracts would have been at hand the Romans often availed themselves of the stipulation in order to create an obligation.
Thus, stipulations were regularly used to strengthen a loan (and to add certain ancillary clauses that could accompany a loan), to replace an already existing obligation with a new one (novation), to make a donation or to promise a dowry, to buy a specific quantity of unascertained goods (this was of particular importance since a consensual sale by description was not enforceable),[507] [508] [509] [510] or to give specific guarantees (these are the manifold "cautiones" that we find both in private law and in the law of procedure:[511] the cautio usufructuaria, the cautiones rei uxoriae or rem pupilli salvam fore, the stipulatio duplae, the cautio damni infecti or the cautio iudicatum solvi to mention a few). By way of example, two areas of application (conventional penalties and suretyship contracts) will be examined more closely in the following chapters.As with the other strictly formal acts of the old ius civile, the stipulation gave rise to only one obligation, not to mutual ones.[512] One party {the debtor) would be bound to perform towards the other {the creditor), but could not, under the same stipulation, acquire a counterclaim. Or, the other way round: the stipulation granted the creditor a right, without, at the same time, imposing a duty on him. The stipulation was a unilaterally binding contract. If, therefore, the parties wished to cast a bilateral agreement {as, for example, a contract of sale) in the form of a contract verbis, they had to make two stipulations: the one relating to the purchase price, the other obliging the seller to make delivery. If the promisor wanted to make sure that the stipulator did not take advantage of the unilateral nature of the transaction by trying to enforce his right without having rendered performance, he would link the two promises to each other by means of a condition: "Centum mihi dari spondes, si Pamphilum tibi dederim?" "Spondeo"; similarly, the second stipulation would then normally be: "Pamphilum mihi dari spondes, si centum tibi dederim?" "Spondeo".[513]
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