Writing and Stipulations

We have met the contract of stipulation briefly, enough to know that it was a contract verbis. That is, it depended on word of mouth, an exchange of question and answer between parties in each other's presence.

The practice was to write out the terms and put at the bottom a little clause indicating the exchange of question and answer, â€?X put the question; Y promised'. The document was evidential only, but no doubt people often skipped the oral exchange. Almost any document which made some reference to a promise having happened could be used as evidence of a stipulatio, even without a full stipulatory clausula of the kind just illustrated. A writing which said â€?I promise to pay you £20' would not do, because no inference can be drawn, given the use of the present tense, of any previous oral promise. But a document saying â€?I promised to pay you' would support an inference of a promise made orally and in response to a question. Again, a document using the present tense, though useless in itself, would help if you could show independently that it was drawn up inter praesentes. In that case it could be reasonably inferred that the writing reflected an oral exchange. All this follows straightforwardly enough from the fact that the document took its force from the oral form. Any document which supported the inference would be useful, the most unequivocally the better.

Justinian’s enactment on contractual documents which we have been looking at does not mention stipulations expressly, though it does refer to �contracts... for any other purpose’ which is in principle wide enough to reach stipulations. However, it is a nice question whether it is logically possible �to agree to make a stipulation in writing’ since in theory the writing cannot be more than evidential.

At all events, Justinian bolstered the effect of stipulatory writings in another way. He made it well nigh impossible to rebut the inference that the parties had met and exchanged question and answer. The consequence of putting obstacles in the way of that rebuttal must have been to make the document dispositive in all but theory. The constitution is at C.8.37.14. Its effect is set out in the Institutes thus (J.3.19.12):

An obligation verbis which has been framed inter absentes is also void (inutilis). But this used to provide litigious men with material for their litigation. For instance they would advance such allegations after time had passed and would maintain that either they or their adversaries had been away. It was for this reason, to meet the need to speed up the resolution of law-suits, that we wrote the constitutio which we sent to the advocates of Caesarea. We laid down that writings of a kind which show that the parties were present are entirely to be accepted (omnimodo esse credendas) unless the party who relies on such unmeritorious allegations adduces the very clearest proofs either in writing or through witnesses of substance, and thus proves that for the whole day on which the document was completed either he or his adversary was away in another area.

You can see that the burden put on the party faced with such a document is almost impossible to discharge. This is not unreasonable. For it is quite true that if separation of the parties is the only objection to the other’s claim, it does constitute a discreditable and technical defence. The technique of reinforcing the document is twofold. First, he must prove separation for the whole of the relevant day. Secondly, he must prove it in a special way, with the utmost clarity and by writing or men of substance (idoneos).

It is evident that the writing is regarded as all important. And this is further revealed by a little logical slip at the beginning, repeated at the end more understandably. Early on, Justinian complains that parties wriggle out by saying that either they or their adversaries were absent. That form of words supposes something from which to be absent, and that something can only be the drawing up of a writing. From an oral exchange it is impossible for one party or the other to be absent: they are either both present or both absent.