The Role of Writing Outside Contracts Litteris

It is obvious that, since the contracts litteris do by definition form the category in which the writing is dispositive, or can be said to be by stretching a point, the use of writing in the rest of the law of contract is to provide evidence.

This sensible instinct can manifest itself in agreements not to be bound until the documentation is complete. The parties say in effect �Yes, now we are agreed on everything but let us postpone the legal bond till the agreement has been written out.' This is essentially what is meant by the English practice of buying land �subject to contract', for that phrase has been construed as putting off all legal effects until the exchange of finalised documents. English law allows a contract for sale of land to be made informally so long as it is supported by a written memorandum signed by the party to be charged. But English practice invariably postpones the legal bond by using the tag �subject to contract'.

We have seen how Gaius, writing before the extension of the citizenship by Caracalla (by the Constitutio Antoniniana in ad 214), had to keep pointing out that according to Roman law writings were, for the most part, evidentiary and not dispositive. In the Hel­lenistic east the law was different. That is what Gaius says: these chirographs and syngraphs are peculiar to peregrines, to non-citizens. The Greek law is obviously very close to the surface of his readers' minds. When the citizenship was extended, with the effect that every­one fell under the same Roman law, the only way you could go on behaving as though nothing much had happened would be, if you were really Greek, to agree to postpone the legal consequences until the Greek moment.

Justinian legislated on this matter. The principle which he operated was this. Even if your contract was of a kind which could in theory be concluded without writing, if you agreed that it should be done in writing, then only a document of utmost finality should have any legal effect. C.4.21.17 (from ad 528):

In the case in which it is proposed that there should be made in writing a contract for sale, exchange, non-registrable gift, arra-giving or for any other purpose whatsoever, and similarly in the case in which it is proposed to reduce a compromise to writing, we ordain that the contract or compromise shall have no force at all unless the documents have been put in their final form and confirmed by the subscription of both parties or, if written by a notary, finalised by him and released to the parties: so that henceforth nobody shall be allowed, till these steps have been concluded, to claim any right from such a contract or compromise, neither from a draft (even in the writing of one or both parties) nor from a final copy not yet executed or delivered. And this shall extend even to the point, in sales of this kind, of excluding the proposition that the fixing of the price compels the vendor to complete the contract or, failing that, to make good in money the buyer’s interest in his performance.

This is clear enough. An agreement to contract in writing means that nothing whatever can be made either of the mere fact of mutual assent or of any preliminary memoranda or drafts. So in the period up to the final documentation either party can get out or gazump. There is a pre-contractual phase unknown to the unimpeded operation of classical law.

This legislation is recited in an abbreviated version in the Institutes, at J.3.23 pr. Justinian is talking about the contract of sale. He begins with the rule �Emptio et venditio contrahitur simulatque de pretio convenerit quamvis nondum pretium numeratum sit ac ne arra quidem data fuerit. (Sale is contracted as soon as the price is agreed, though the price has not been paid and no arra has even been given.)’ And then he explains that that rule has been changed for contracts agreed to in writing, an observation which leads into the paraphrase of the legislation.