Will-orientation, mistake and the formal transactions

(a) Testaments

These last remarks have carried us into a field of law which presents problems similar to the law of contract, though in a distinctly different way: the law of testate succession.

The testament of a person is supposed to convey and embody his or her last will, but it is a strictly formal declaration. Hence, again, the potential for a conflict between verba and voluntas, hence the problems of interpretation and of the effect of "cognitive weaknesses", of defects of the will on the validity of the testator's declaration. The stringency of the (external) formalism that dominates testate succession militates against a particularly liberal attitude to be adopted on these questions. On the other hand, however, account must always be taken of the fact that a contract creates a bond between two (or more) parties, whereas a will neither creates an obligation on the part of the testator nor involves the interests of any other party at all. The will is not addressed to anybody in particular, it does not confer any right (or even an expectation that could be of legal relevance), and it is freely revocable. Whilst, therefore, the law of contract has to balance the interests of both the declarant and the recipient of a contractual declaration, the law of testate succession can focus to a much greater extent on the interests of the former. Since a will cannot be taken to create a reasonable expectation, there is no need for the law to protect any such position. Hence the inclination of most legal systems to meet and carry through the (recognizable) intentions of the testator as far as possible.

(b) Stipulations

It is small wonder, under these circumstances, that testaments were the first formal transactions of Roman law in relation to which the more modern, will-oriented way of interpretation gained ground, and where defects of the will, and in particular error, were taken into consideration.

Pre-classical jurisprudence already appears to have gone beyond the typical meaning of the testator's declaration in an attempt to give effect to his (real) intentions. For details, we must refer the reader to the literature on the Roman law of succession.⁵⁴ For our purposes, it is important to note the general trend of the development. For, once a more liberal attitude prevailed in relation to wills, the scene was set for a gradual relaxation of the strict word formalism in other transactions too, most notably with regard to the stipulatio. We have already stressed repeatedly that consensus, the subjective agreement, came to be increasingly accepted as cornerstone and actual effective reason for all contractual obligations.⁵⁹ Hence, for instance, the importance of informal pacta for the determination of the content of a stipulation;⁶⁰ and hence also a tendency to take account of deviations between verba and voluntas... nam et stipulatio quae verbis fit, nisi habeat consensum, nulla est":⁶¹ in spite of formal correspondence between question and answer, a stipulation could be invalid if no actual agreement had been reached between the parties on one and the same object. This appears very clearly from Ven. D. 45, 1, 137, 1: ^[3087] ^{^[3088] "Si hominem stipulatus sim et ego de alio sensero, tu de alio, nihil acti crit: nam stipulatio ex utriusque consensu perficitur. "^f12
The stipulator had one slave in mind, the promisor another: no valid stipulation has been concluded. Or, as Justinian put it in the Institutes: the situation is the same as if no answer had been given to the question.^[3089] ^{^[3090] The above example can cover two situations:^[3091] question and answer may have referred to Stichus, but there is more than one slave of this name. The stipulator thought of the one Stichus and the promisor of the other. In modern terminology, this would be a case of dissensus.}
Alternatively, again, the stipulation may ostensibly have been about Stichus. The promisor, however, had a different slave in mind, whose name he believed to be Stichus but who was in actual fact called Pamphilus.^[3092] Here we are dealing with unilateral mistake.^[3093] In Rome, as has been pointed out already, this distinction did not matter^[3094] ^{^[3095] ^[3096]} since in both cases there is dissensus in the broader sense (i.e. a lack of consensus). As with the consensual contracts, not every form of error could, of course, be regarded as operative. A mere error in nomine, for instance, did not affect the validity of the transaction: "Si in nomine servi, quern stipularemur dari, erratum fuisset, cum de corpore constitisset, placet stipulationem valere.^1,68 Neither did, in the case of a stipulation, an error in substantia invalidate the contract: "Si id quod aurum putabam, cum aes esset, stipulatus de te fuero, teneberis mini huius aeris nomine, quoniam in corpore consenserimus."^6y Only if the promisor had deceived the stipulator about the nature of the price of metal could the latter avail himself of an exceptio doli and thus escape condemnation.
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Will-orientation, mistake and the formal transactions

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