The importance of form and formality

(a) Form as the oldest norm

The history of stipulation provides a good example of the importance of form and formalism in Roman law. Legal effects in ancient Roman law, as in other early legal systems, could be achieved only by way of formal acts.

When we think of formal transactions today, we see the form as accompanying the legal act; it has usually been introduced by the legislator, for specific policy considerations, as an additional requirement for the validity ofthat act.^[464] But this, in the development of a legal system, is a relatively modern thinking pattern. Originally, form itself created the legal effect; it was, as Gerhard Dulckeir has put it, "Wirkform" (effective form) rather than "Schutzform" (protective form). Compliance with the form was the actual reason (not only a necessary requirement) for the existence and recognition of a legal effect. Historically, this concept of form is based on a primitive belief in its magical nature.^[465] If we take, for example, the law of obligations, we have seen that, originally, the hostage given to the creditor as a pledge was probably physically bound: "obligatus" in the literal sense. When this real bond was in the course of time superseded by an ideal, imaginary bond, the binding nature of the latter had to be secured somehow. Therefore, the creditor's real power over the body of the person who was liable came to be replaced by a magical power over him and it was for this purpose that a formal ritual had to be performed. These rituals were devised by the state priests who, at that time, were not only in charge of sacral affairs, but were also responsible for the application and development of the law.^{91 ^[466] * ^[467] ^[468] They all entailed the uttering of precisely set, formal words, often reinforced by the performance of symbolic acts, as, for example, laying one's hands or a staff on the object of the transaction.
It was only by means of these rituals that legal transactions could be effected: compliance with the ritual formalities brought about a real (but invisible and in so far magical) change in the relationships between the parties concerned. The slightest mistake would wreck the whole transaction: every reader of fairy tales knows that magical effects can be engendered only by a most punctilious recital of a set formula. Procedure has always been a prominent arena for this kind of formalism and thus we cannot be surprised to read what Gaius reports about "nimia subtilitas veterum" relating to the legis actio procedure: "unde cum qui de vitibus succisis ita egisset, ut in actione vites nominaret, responsum est rem perdidissc, quia debuisset arbores nominare, eo quod lex XII tabularum, ex qua de vitibus succisis actio compcteret, generaliter de arboribus succisis loqueretur.'"^A
A very similar formalism is known to have governed the old Germanic procedure:^[469] qui cadit a syllaba, cadit a causa. But whilst the old legis actiones were by the time of classical law no longer in use, many of the formal transactions of private law were; and the stipulatio (besides mancipatio and in iure cessio) was one of the most important of them. Even though there was now, of course, no longer any magic in an exchange of oral question and answer in free, if corresponding, words, its basic structure had, as we have seen, been reverently preserved. As a consequence, the liability of whoever had made a promise could not extend beyond what was covered by the words used; but, on the other hand, he would also be held relentlessly bound by those words. As long as the formalities had been correctly executed, the act was fully effective, no matter whether those effects had in actual fact been willed or not. It is obvious that under those circumstances a gap could develop between what was wanted and what was formally declared and, if one took only the latter into consideration, hard and inequitable results were likely to ensue.
But it is quite ahistorical to envisage the problem in this way with regard to an ancient legal system. Right until the Republic it would not have occurred to the Roman lawyers that a discrepancy between will and word could exist.^[470] The actual reason for the desired legal result was not the consent between the parties but the formal exchange of the words. The true will of the parties could be discovered only from the words.^[471] One may, incidentally, well raise the question whether strict adherence to this principle was really as harsh as it seems to us today. When we are inclined to take offence at the fact that a deviation from the required form would invalidate the whole transaction, even though there might have been substantive agreement between the parties, we proceed from the supposition that the parties really wanted to be bound under those circumstances and merely somewhat carelessly neglected to observe the form. But it is equally possible that non-compliance with the form signified the intention of the parties not to be bound! Considering the simple and uncomplicated nature of the stipulation, so familiar to every Roman citizen, the second possibility is arguably the rule rather than the exception.^[472] ^{^[473] Furthermore, in predominantly agrarian early societies legal transactions were not as commonplace as they are today and were therefore approached with gravity and concentration. Considering the importance of the act, one therefore did not mind the demands made upon the parties' precision and attention. Thus what we regard as formalism today was not perceived as such in early Roman law. Form, then, in this sense, can be said to be the oldest norm.}
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(b) From "effective"form to "protective"form
In the course of time, however, this attitude changed. In the wake of the rise of the informal contracts, the meeting of the minds, the agreement of the parties concerned, came to be accepted increasingly as the cornerstone of and actual effective reason for all contractual obligations.
This agreement, as far as all the more important transactions were concerned, would as a matter of course be recorded, but such a document served an evidentiary purpose only. Thus, with the increase in the use of writing^[474] we find a shift from "effective form" to "protective form".^[475] The documentation merely accompanied the transaction and did no longer in itself represent and embody it; where it was made mandatory, it served to promote specific policy considerations: certainty of the law, facilitation of tax enforcement, etc. As far as the stipulation was concerned, however, the effective and protective functions in post-classical law became somewhat confused. As we have seen, the oral formality was gradually superseded by the drafting of an instrument. When this happened, under the influence of Hellenistic practice and tradition,^[476] one of the characteristics of the question-and-answer ritual, namely its obligatory effect, passed to the instrument. This is where the roots of the modern law of negotiable instruments are to be found.^[477] But as, on the other hand, no sharp distinction was drawn between constitutive and simply evidentiary documents, the original idea of the written document merely providing evidence for the (oral) conclusion of a stipulation was never entirely lost. (c) Formal requirements in modern contract law
Modern legal systems still know the written record (in its many variants ranging from simple writing to a document attested by an independent public official)^[478] as a formal requirement, though only for specific transactions and as an exception to the general rule that all formless agreements are enforceable.^[479] Often, certain formalities have to be observed with regard to the contract of sale of land,^[480] (usually justified by the consideration that landed property, as a rule, is the most important of the seller's assets).^[481] Contracts of guarantee are another typical example,^[482] it being assumed that the dangers inherent in standing surety are not realized by many; promises of gift can be mentioned as a third^[483]—here it would otherwise often be difficult to determine whether a specific declaration was meant to be taken seriously.
Sometimes the legislator subjects new types of legal transactions to a statutory form: one may think of § 2 AGBG^[484] and § la AbzG^[485] which have been introduced in the interest of consumer protection. Still, the general trend is towards informality, at least as far as the traditional core areas of private law are concerned, "lus vigilantibus scriptum" was the call of 19th-century liberalism, in the spirit of which the excessive formal requirements enacted under the patronizing and paternalistic aegis of enlightened absolutism^[486] were shaken off: people should normally be able to look after their interests themselves and should not have to be tied to the apron strings of statutory formalities. But even where specific forms are still required, a tendency is often observable in the practice of the courts to water down such rules.^[487] They have all been introduced in order to achieve certain legislative purposes: to facilitate proof of the transaction,^[488] to give an opportunity for thoughtful consideration and thus to prevent rash and precipitate declarations, or—in the case of notarial authentication— to provide for legal consultation.^[489] ^{^[490] ^[491] It is, of course, perfectly possible that, in an individual case, these aims could have been realized in other ways, even though the formal requirements were not met by the parties: anxious consideration of all the risks involved may well have preceded the oral promise to stand surety; the oral promise to sell a piece of land may have been given by a professor of property law (who, one would assume, hardly needed legal advice); the testator might have made his intention to institute his niece as heir absolutely clear.¹¹⁷ The sanction of invalidity therefore seems to overshoot the mark: it is not demanded by the policy underlying the rules requiring formality of the act. Strict and uncompromising application of the law under these circumstances is often denounced as "formalistic".¹¹⁸ Equitable inroads have therefore from time to time been made into the domain of statutory forms.
One of the most notable instances has been the willingness of the German Federal Supreme Court to enforce contracts for the sale of land, which lack the form prescribed in § 313 BGB, if the basic principle of good faith so demands: this, in the view of the court, is the case if the result would otherwise be "plainly intolerable" (so: and not only "hard") for the party relying on the validity of the transaction.^[492] Such tendencies, however, are of a questionable nature. Ours is an age of formlessness. We like to focus our attention on the individual case and therefore tend to overemphasize the disadvantages of form. Indeed, it is indisputable that form not only entails a certain amount of inconvenience; it is also dangerous, in that a small flaw can have grave, harsh and unexpected consequences. (d) Formalism or flexibility?
The advantages of form, on the other hand, are less noticeable, because they are of a negative nature.^[493] Whenever a transaction is held invalid due to a formal lapsus, one's sense of equity is incensed;^[494] it is hardly ever emphasized, however, how many rash, ill-conceived and inequitable transactions have been prevented due to compliance with a statutory form. It is in the interest of these many cases that hardship in an individual situation has to be accepted. The broader legislative purpose behind provisions which lay down formal requirements can be achieved only if they are strictly applied. The extent to which that is possible naturally depends largely on the general appropriateness of such provisions in pursuing the legislative policy,¹²" and on whether there has been reasonable reliance which needs to be protected.^[495] ^{^[496] But it should be clearly recognized that an individualizing approach misses the essence of statutory form in its typifying purport. Insurmountable difficulties in defining and demarcating exceptional cases (what is only "hard" as opposed to "plainly intolerable"?) are the consequence.}
The attitude of a legal culture towards form reflects its self-image and maturity. At the same time, the form in which the law appears and finds expression is an image of the general spirit of the age. Strict formalism and rigidity are characteristic of the archaic agrarian society, governed by strict discipline and living in accordance with typified behaviour patterns. The other extreme is absolute freedom, unlimited individualism and arbitrariness. Its legal expression is formlessness and the boundless sway of equity; its general intellectual background is one of superabundance and profusion of material, spinelessness and mental exhaustion.^[497] Formalism and flexibility are intrinsically opposed to each other. The one makes for certainty of the law, the other for equity—the two principles on which justice is based. These principles are antagonistic. Yet the legal system must try to realize both simultaneously. That makes ideal justice a Utopian idea, for the one principle must always be precariously balanced against the other. To carry through the one without any regard to the other would lead to extreme injustice: summum ius summa iniuria.^[498] The legal system thus has to strive for a coincidentia oppositorum on the highest attainable level. It is submitted that Roman jurisprudence under the Principate came as close as is humanly possible to achieving such harmonization and therefore truly deserves the epithet "classical".^[499]
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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 importance of form and formality

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