Verbal contract: stipulation

The most important verbal contract was, by far, the stipulation, because of its elasticity and formal simplicity. Founded on Roman fides, a stipulation was an oral obligation by means of which a promisor became a debtor after answering a question formulated by the stipulator; e.g., “Do you promise to give me three hundred sesterces?” “Yes, I promise.” The answer had to be completely coherent with the question and had to use the same verb as in the question: “Do you swear?” “I swear”; “Will you do?” “I will do”; “Do you pledge?” “I pledge” (Gaius 3.92).

Two or more persons could act as stipulators or promisors in one and the same stipulation. If Titius promised Caius and Sempronius to pay one hundred sesterces, both Caius and Sempronius might claim the payment from Titius, and Titius might fulfill his obligation by paying either Caius or Sempronius. On the other hand, if Caius and Sempronius promised to pay Titius one hundred sesterces, Titius might claim the payment from either one of them. The payment from either Caius or Sempronius destroyed the obligation.

The content of a stipulation had to be clear and specific, and any ambiguity would be construed against the stipulator (Ulpian, D. 45.1.38.18). The promisor could not change the terms of the contract; any addition, condition, limit, or restriction in his answer to the stipulator’s question made the whole stipulation void. Because of the oral nature of the stipulation, neither a mute nor a deaf person could contract a stipulation (Ulpian, D. 45.1.1pr.).

The old form of stipulation (sponsio), religious in origin, was permitted only to Roman citizens and had to be made in Latin. Later, however, it was

The law of obligations: contracts 185 available to noncitizens.

The stipulation was abstract in content in the sense that if all formalities required by the stipulation were fulfilled, the debtor was obliged, without regard to the ground (causa) of the stipulation. In the stipulation, “Titius, do you promise to give me one thousand sesterces?” “Yes, I promise,” the ground could be payment of annual rent, payment of the price of an item purchased by Titius, or making of a donation, among other things. These grounds, however, were not relevant if they were not expressly mentioned, because of the formal and abstract character of the stipulation. Sometimes, however, the praetor could grant an exceptio doli when the stipulation was not founded on a legal ground, or the stipulator did not act in good faith.

Stipulations could be used to create any kind of obligation in all areas of private law, including civil procedures: payments, a fine for not fulfilling a contract, constitution of a dowry, cautions, sureties, constitution of servitudes, and usufructs in provincial lands, among other things. Actually, stipulation was a contractual template or a way of contracting rather than a contract in the strictest sense. Stipulations could be expressed in a written document (cautio) for evidentiary purposes; however, especially after the Antonine Constitution (212 ce), the written document, in accordance with Greek prac­tice, replaced the oral declaration, which gradually lost all significance. Emperor Leo (C.J. 8.37.10 of 472) dispensed with the old Roman oral ritual of the stipulation if the parties agreed at the same time and in the same place.

Stipulations bound only stipulators and promisors. Thus, stipulations in favor of third persons (e.g., Titius promised Caius to pay one hundred sesterces to Sempronius) were invalid unless the third person was under the power of the stipulator (Ulpian, D. 45.1.38.17). Some rationales supporting the prohibition of this kind of stipulation in favor of others can be found in the formal con­sistency between the question and the answer required by the stipulation, in the usual lack of an actionable interest of the stipulator to be involved in such a stipulation, and especially in the Roman reluctance to accept the validity of agreements in which third parties acquired rights.

Acceptilatio

According to the Roman rule, all obligations created by words (verbis) had to be released by other words (Gaius 3.170). Thus, the Roman jurists created an oral contractual form of release, called acceptilatio. Gaius (3.169) says that it was a sort of “imaginary payment” whose formula was as follows: “What I promised you, have you received?” “I have.” Later, Greek words were also

accepted. Acceptilatio could not be subject to a condition or dies, but a con­ditional stipulation could be released by acceptilatio - e.g., “Do you promise to give me one hundred sesterces if it rains tomorrow?” “I promise.” Although acceptilatio served in later law as partial release (Ulpian, D. 2.15.2), in Gaius’s time it was questioned (3.172).

Originally acceptilatio was restricted to verbal obligations, but the effects of acceptilatio were expanded to all kinds of obligations, both civil and praetorian, thanks to the new stipulation formulated by the Republican jurist Aquillus Gallus: the so-called stipulatio Aquiliana. The Aquilian stipulation could cover all kinds of debts - those arising from both civil law and praetorian law, those present and future, and those due and not yet owed. The Aquilian stipu­lation was essentially a general settlement of all specific debts of a particular debtor to a creditor. By means of this stipulation, whose formula has been preserved (Florentinus, D. 46.4.18.1 and Inst. 3.29.2), the parties transformed by novation all previous obligations, whatever they were, into a single verbal obligation that could be released by acceptilatio (Ulpian, D. 2.14.4). Acceptilatio could also affect property relations.