Formal contracts Flashcards
Why have formal contracts?
Formal contracts such as the verbal and literal (written) contracts provide evidence for the existence of the contract , the agreement , evidence for when the contract was created, the intention to enter into a legally binding agreement. It also provides a cautionary effect- a definite form of contract prevents a person from making a rash decision.
What are the disadvantages of formal contracts? (formalities)
It is costly and if its requirements have not been complied with then the contract is void. There is no point when there is already another system
What are some examples of formal contracts?
Verbal (stipulatio) and written contracts
What were the key characteristics of the stipulatio?
The early verb form spondere. Typically ‘dari spondes’ with the reply of ‘spondeo’- ius civile. Other forms were ius gentium. In the later law other verb forms could be used provided that it was spoken, the answer immediately followed the question, they corresponded, both parties present throughout.
Any agreement could be made binding if made in this form
What are the advantages of the stipulatio?
The stipulatio form is very clear. It is evident when the agreement has been made (i.e. on the appropriate answer.). It also provides a cautionary effect because both parties have to be present and listen to the terms. It is also useful for filling the gaps in nominate contracts particularly in relation to broadening liability e.g. for defects (as in the actio empti- non performance of the stipulatio).
What are the disadvantages of the stipulatio?
It was unilateral so difficult to enforce
No evidence that the agreement had been created
There was not much clarity as specific words had to be used. Others argue that this is necessary for clarity
What is the role of the written stipulatio?
The written stipulatio provides evidence that the formalities contained in the stipulatio had been accomplished. It was essentially an evidentiary document and provides proof that the parties met.
What was the written stipulatio influenced by?
The Greeks- particularly after the constitutio antoniana which extended Roman law to those who had previously embraced Greek ideas
Was it difficult to prove that a stipualtio had not been made?
Exploitation of technicality- Justinian made it harder stating that the defence of the non-existence of the stipulatio would only exist of both parties were in different states. This also includes slaves who were sent to represent their master.
What are the advantages of the written stipulatio?
It provides evidence of the intention to create legal relations. It is rather easy as the parties no longer need to be face to face (a messanger could be sent). It is also efficient considering the expanding Roman empire- need to incorporate Greek ideas.
Cautionary effect
What are the disadvantages of the written stipulatio?
May provide less clarity as the terms of the agreement are no longer read out. Leads to extensive documents. Misunderstanding as they do not need to meet face to face
How did the formal contracts develop later on (under Gaius and subsequently with Leo’s constitution 472?
One interpretation of Leo’s constitution is that any words could be used provided that the question and answer corresponded (expounded by Nicholas). Riccobono suggests that there was no requirement for agreement . This was not that important because the stipulatio was mostly written at this point. The contractual document under Justinian was mostly evidentiary.
What are the advantages of the extension of this form?
More flexible as more words can be used when contracting
What are the disadvantages of the extension of this form?
Less clarity if more words can be used as it is unclear when the contractual agreement is created
