oral contracts Flashcards
What were the oral contracts
Stipulatio - by far the most important
Dotis dictio
Iusiurandum liberti or promissio iurata liberti
Stipulatio
Was the unilateral contract concluded by question and answer – G.3.92 + J.3.15.PR
Was the most important and typical creation of Roman law
In the form of sponsion -perhaps the oldest Roman contract
In developed law any lawful undertaking could be made binding by stipulation
Anything capable of being owned could be the subject of a stipulatio – J.3.19.PR
Development of type of stipulatio
earliest ones seemed to be those for a sum of money (certa pecunia)
Next stipulations included for a specific thing or quantity(certa res)
finally they included an incertum -follwing specific course of conduct etc
so stipulatio could be used for any lawful dare facere praestare
(giving, doing, or performing
Early form of stipulatio
It was very simple originally
- Earliest form was of sponsio
- A formal question was asked by one party and the other party had to answer using the same verb of promise (spondeo- I promise)
- The original verb of promise was spondere
As stipulatio became available, via the ius gentium, to foreigners – the use of spondere was ONLY permissible between Roman citizens – G.3.93 + J.3.15.1
- So sponsio was iuris civilis – in the practical sense
Classical form of stipulatio
Question and answer could be expressed in other words - argued to be any words
provided that a few conditions were still met
- The question + answer must be spoken
- The answer must immediately follow the Q
- Both parties must be present throughout
- The Q must exactly correspond with the answer
- Both as to the promissory verb used
And as to the content
- No witnesses necessary - but many wanted them for security
Emperor Leo in regard to stipulatio
In AD 472
Enacted that all stipulations – although not in solemn words – but in any words that may express the parties’ intent should have the full force
Could be taken to mean there no longer needs question and answer so long as there is clear evidence of agreement
BUT the dominant view is that most of the relaxations were post-classical
- That Leo confirmed them
- And from his time onwards any form of words which revealed intent to form a contract would suffice without correspondence of question and answer
But this would make it almost impossible to distinguish a stipulatio (a contract) from a pact (not a contract
Alternative view on the history of stipluatio to Thomas’s on Leo’s enactment
Determined from the interpretation of veluti in G.3.92
- It can mean for example but can also mean ‘namely’ or ‘to wit’
- If we choose the latter interpretation
- For G there was an exclusive list of words of promise for creating obligations
- This remained the Rule until the time of Leo
Leo’s declaration just meant that people are no longer restricted to G’s list of verbs
- But question and answer still had to correspond
- Question and answer still required – even in J’s law – but here any verbal assent would be okay
Core elements of stipulatio - in principle
Because stipulatio was concluded by question and answer
- parties had to be present together
- deaf and/or dumb could not make such a contract
- transaction had to be continuous
- no time between question and answer -couldn’t take even part of a day to think about it and then answer, here question must be posed again
Cautio and its effect on stipluatio in practice
In practice - the development of the custom of creating a written record of the transaction was a sign of substantial modifications
The law did not require any specific evidence of the conclusion of a verbal contract
- but became common practice for parties to record their transaction in writing known as a Cautio
see digest 2.14.7.12
Cautio in law
cautio was in law - just written evidence that the parties made their oral question and answer
so proof that this was not the case defeated an action brought using the cautio as proof
But
- cautiones grew in increased probative (demonstrating something/affording proof or evidence) force
- suspected that the requirement of simultaneous presence of the parties and their oral exchanges was already often ignored in classical law
development of stipulatio regarding cautio in classical law
- still required the transaction to have face to face
- but a rescript of Servus – ruled that where there was a cautio of a promise – it could be concluded that the promise was in answer to a question
- so the stipulation had been concluded(made)
Justinian’s enactment on cautio
stated that if a cautio recorded a stipulation made with the parties present
the contract was to be presumed as concluded
- unless it was clearly proven that one or the other party had been absent from where the contract stated itself to be made, for the whole day in which the contract was recorded as being made
- if the contract made was alleged to have been done by a slave sent for that purpose, there was a conclusive presumption of his presence and that he belonged to his alleged owner
So by the time of J the true oral contract of stipulatio was likely of little significance
But the principle of oralities and presence remained
Dotis Dictio
It was the formal declaration of the constitution of a dowry
- In classical law a dowry could be given, declared, or promised
- It was available to only a limited class of people
- These were: 1) paterfamilias of the bride, 2) The Woman herself – if she was sui iuris, 3) a debtor of the bride – who she had delegated to her husband
Iusiurandum liberti
- Also known as promissio iurata liberti
- Was a sworn promise where a manumitted (freed) slave agreed to carry out specific services (operae) for his master – who became his patron when he was freed
- Before manumission a slave had no capacity to enter into a contract
- After manumission an ex-slave could refuse not to enter a contract
- So before he is freed he swears an oath that binds him under a religious obligation to repeat his oath after he had been freed – giving him legal capacity
- Only the slave/freedman spoke but both parties had to be present
- First oath had to be by oath
- Second one could be by sworn promise or by stipulatio
