Ex contractu

Question 1

Stipulatio - Riccobono

Answer 1

• Classical law: stipulatio was a formal oral contract. The cautio was evidence that the oral question and answer took place.
• Post classical law: Leo abolished the need for question/answer, but left intact the need for spoken words inter praesentes. The cautio was almost conclusive evidence.
• Justinian: any written document was conclusive evidence (but in the same civitas). The survival of the distinction between pacts and stipulations in Corpus Iuris Civiles is “purely theoretical and mere historical reminiscence”.

Question 2

Stipulatio - Nicholas

Answer 2

• Classical law: stipulatio was a formal oral contract based on certain words. He argues that “veluti” means “as follows” rather than “for example” (Gaius). The cautio was a provisional presumption.
• Post classical law: Leo abolished the need for formal words. The question and answer format was still necessary.
• Justinian: in theory, the stipulatio as the formal oral contract remained. In practice, the oral stipulation had given way to the written stipulation. Not every document was presumptive evidence - the provision was also compelling but not conclusive.

Question 3

Stipulatio

Answer 3

• Required a formal question from the promisee, followed by a formal answer from the promisor.
• Had to be verbal, clear, congruent, continuous.
• Note that stipulation for a lesser sum was accepted by Ulpian (not Gaius); as well as replying with “of course” or “why not”.

Relaxation occurred:

• Other words allowed
• Admitted to foreigners
• Greek equivalent allowed
• Largely reduced to writing through the cautio
• Leo’s constitution

Question 4

Law of contracts/contract - consensus

Answer 4

Ibbetson:

• All contracts were underpinned by the concept of consensus. This was a genuine meeting of the minds, a consensus ad idem.

Question 5

Law of contracts/contract - Nicholas

Answer 5

• Lawyers worked out in detail the “incident” of each type of contract. Through isolation, they were able to assign to them those legal consequences which seemed the most appropriate.
• For each cause of action, there was in a principle a specific form of action.
• Thus, there arose the possibility of gaps in the law. This was mitigated by the existence of stipulatio which can be seen as a method of contracting - providing the element of generality otherwise missing.

Question 6

Law of contracts/contract - Watson

Answer 6

• Takes the view that in early law, the Romans did have a law of contract because of the all-embracing nature of the stipulatio.
• In later law, stipulatio was gradually side-lined by the emergence of numerous other contracts.
• Therefore, almost all contracts are derogation from the stipulatio.

Question 7

Law of contracts/contract - Pugsley

Answer 7

• Stipulatio was not an all-purpose contract, but confined to the future conveyance of res mancipi.

Question 8

Law of contracts/contract - unifying principles

Answer 8

CONSENSUS

• Mistakes (error in negotio, error in substantia, error in corpore, error in persona)
• Duress (actio quod metus causa; exceptio metus
• Fraud (actio doli; exceptio doli)

CAUSA

• Formal contracts: cause is in the form
• Contract re: causa is in the delivery
• Consensual contracts: causa in the socio-economic conditions of Rome

Question 9

Law of contracts/contract - unifying principles BUT

Answer 9

Watson: Each individual contract remained, with its major quirks.

• Contracts re: still needed delivery, agreement was not enough on its own (mutuum, commodatum, depositum…)
• Innominate contracts: agreement was not the source of the contract: look at permutatio (or else unjust enrichment).

Therefore, between different pockets: there was only a residual understanding of the concept of a law of contract.