The framing of the stipulation

(a) Abstract or causal?

As far as the framing of the stipulation was concerned, we have already seen that there had to be formal correspondence between question and answer. But, apart from that, the use of specific words was not prescribed.

That was what made the form of stipulation such a flexible tool. It could be used to promise whatever dare, facere or praestare the parties had in mind. If that was payment of one hundred, they could, for instance, merely say: "Centum mihi dari spondes?" "Spondeo." But, of course, nobody is likely to promise centum just like that. People usually have a reason for making such a promise. In our example the hundred might have been promised as a dowry or because the parties wanted to reaffirm an obligation based on a contract of sale; or perhaps the hundred was simply meant as a gift. This underlying purpose of the promise did not have to be mentioned in the stipulation; the stipulation—as in our example above—was then framed abstractly. Why the hundred had been promised, was anybody's guess; it certainly could not be ascertained from the stipulation itself. The promise was therefore valid according to the ius civile, irrespective of whether anything had gone wrong as far as this underlying causa was concerned. On the other hand, the parties could also expressly include the causa stipulationis in the wording of question (and answer) and thus draft the stipulation causally: "Centum mihi dotis causa spondes?" "Spondeo" (or: "Centum tibi dotis causa spondeo"); or: "Quod mihi ex empto debes, dari spondes?" "Spondeo"; or: "Centum mihi donationis causa spondes?" "Spondeo". Here the obligatory effect of the promise was tied to the validity of dos, sale or donation. A clear comprehension of these two ways of drafting a stipulation is also relevant as far as the interpretation of stipulations is concerned.

A good example is lav. D. 24, 3, 66, 4: "Mulier, quae centum dotis apud virum habebat, divortio facto ducenta a viro errante stipulata erat. Labeo putat, quanta dos fuisset, tantam deberi, sive prudens mulier plus esset stipulata sive imprudens: Labeonis sententiam probo." Here, the value of the dos was 100, but the ex-husband mistakenly promised to pay back 200. Both Labeo and lavolenus think that only 100 are owed. This decision must seem either very strange or astonishingly "progressive" to anybody who would assume this stipulation to have been something like "Ducenta mihi dari spondes?" "Spondeo". For how could a clear and unambiguous promise of ducenta be held to mean centum by any classical lawyer, let alone by an early classical writer such as M. Antistius Labeo? Stipulations, after all, were strictly construed, and circumstances not embodied in their wording were normally not taken into consideration.^[514] Things look quite different if one takes the possibility into account that the stipulation had been framed causally— and would thus have mentioned that the promise was given for the purpose of repayment of the dos. Looking at the stipulation now, one is faced with a glaring inconsistency: the parties spelt out the sum of two hundred, but they actually envisaged (as is apparent from the text of the stipulation, too) the sum of one hundred. The promise therefore seems to be for one hundred and for two hundred at the same time. The fact that Labeo, under these circumstances, chose to interpret the stipulation in the way he did (because one hundred was what the parties really had in mind) would then have attested to his skill in finding the most sensible solution to the problem. It is more than likely that, indeed, the problem presented itself in terms of the second alternative. For it has to be taken into consideration that "mulier" would, in any event, after termination of her marriage have had a claim for restoration of the dos and would thus have been able to avail herself of the actio rei uxoriae.

The stipulation therefore appears to have had a novatory function; we know, however, that stipulations of a novatory character always stated as their content that which was owed under the previous obligation; in other words, that they were framed causally.¹³⁹

(b) The exceptio non numeratae pecuniae

On the other hand, the practical difference between the abstract and causal way of drafting the stipulation should not be overrated. Abstraction did not entirely exclude recourse to the causa—it only made it more difficult. Where the creditor tried to enforce an abstractly framed stipulation, the debtor could still defend himself by pointing out that the hundred were meant to be a dos and that the marriage had not taken place, or that the promise was based on a contract of sale which had been invalid, etc. But it was only by way of an exceptio, usually the exceptio doli (which the defendant had to get inserted into the formula), that all this could be taken into account: the argument being that a creditor enforcing a stipulation sine causa was acting in breach of good faith.¹⁴⁰ For certain situations special exceptiones were available: the exceptio mercis non traditae where a purchase price had been—abstractly—stipulated and where this stipulation was now enforced without the goods having been delivered,⁴¹ the exceptio non numeratae pecuniae where the defendant objected that he had in actual fact not received the loan for the return of which he was now being sued. This latter exceptio was introduced in late classical law in order to meet the situation where the debtor had acknowledged receipt of, and promised to repay, the sum agreed upon before it had actually been handed over to him.¹⁴² That prospective creditors should have asked for such an anticipatory promise does not seem to have been uncommon at all;^14r the borrowers, in order to receive the capital, would have complied with this request by way of stipulation; and evidence of this stipulation would, by that time, generally have been a written document (which in the course of the further development was to acquire an increasingly dispositive function after the model of the Greek ovy"ypaipij).

Of course, under these circumstances it was bound to happen that what had in actual fact already been acknowledged did not take place and that the loan was not handed over after all. If the creditor then presented the instrument and sued for repayment, he

“ Cf.. for example. Ulp. D. 45. 1. 75. 6.

^11,1 Cf. Wolf. Causa stipulationis, pp. 1 sqq.. 76 sqq.; Andreas Wacke. "Zur causa der Stipulation", (1972) 40 TR 237 sqq.; Dobbertin, op. cit., note 26, pp. 60 sqq.

^tAX Gai. IV, 126 a; lui. D. 19, 1, 25; cf. Thielmann, Prwatauktion, pp. 141 sqq.

^№ See esp. Ernst Levy, "Die querela non numeratae pecuniae", (1953) 70 ZSS 214 sqq.; Buckland/Stein, pp. 442 sq.; Kaser, RPrl, p. 542; idem, RPrli, pp. 379 sq.; Thomas, TRL, pp. 268 sq.; and, most recently, Maria Rosa Cimma, De non numerata pecunia (1984); Herve Trofimoff, "La cause dans 1'exception non numeratae pecuniae", (1986) 33 RIDA 215 sqq.

“ Cf. e.g. Gai. IV. 116 a. 119; Ulp. D. 44. 4. 2. 3. could normally be met with the exceptio doli.^{^[515]} But sometimes this avenue was not open to the debtor: "Adversus parentes patronosque neque doli exceptio neque alia quidem, quae patroni parentisve opinionem... suggillet, competere potest."^{^[516]} Therefore, an exceptio in factum had to be introduced and this was the exceptio non numeratae pecuniae. It could also be used where the creditor had not behaved fraudulently, perhaps because, as a "cessionary", or as the heir of the creditor, he did not know that the loan had actually never been paid out. But its impact went far beyond these cases. Normally the defendant (borrower) would, in order to substantiate his exceptio doli, have had to prove a negative fact, namely that he had not received the loan.^{^[517]} That was, of course, very difficult. The main effect of the exceptio non numeratae pecuniae therefore consisted in the fact that the burden of proof, as far as the advancement of the loan was concerned, was shifted (back, as it were) upon the plaintiff. But even independently of any action on the part of the plaintiff, the defendant could contest his obligation by means of a querela non numeratae pecuniae.^{^[518]} Both the exceptio and the querela at first prescribed after one year, later after five years, and finally, since the time of Justinian, after two years.^{^[519]} If the remedies were raised in time, neither a stipulation nor any document was of much assistance to the creditor any longer. Otherwise, that is, when the time set for bringing these remedies had expired, the written acknowledgement of the debt was to become, in post-classical times, irrebuttable proof that the loan had in fact been paid out.^{^[520]}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The framing of the stipulation

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