Stipulation and bona fide and stricti iuris

Question 1

What was the stipulation?

Answer 1

The stipulator requests the promisor (debtor) to make a promise. It is the most important of the verbal contracts

Question 2

What were the requirements of the stipulation?

Answer 2

Question and answer had to immediately follow- this was the requirement of a Unitas actus

The question had to precede the answer

Could not introduce new terms

Correspondence of question and answer- if the question is for 10 you cannot reply for 20

Question 3

What was the stipulation based on?

Answer 3

Fides romana- it reflected the Roman predilection for ‘simplicity, accuracy and brevity’ according to Schulz

There was little room for obscurity or misunderstanding as the stipulator is forced to sum up his proposed transaction in a question and the promisor is made to listen to this question and give an explicit corresponding answer. This insistence on the oral formality with the repetition of a key verb made it clear when the stipulation had been concluded

Question 4

What are the advantages of the oral formality?

Answer 4

Clear when the stipulation had been concluded with the insistence on the oral formality, repetition of key word.

A formal oral promise given to another arguably had a greater effect than a document with a signature, especially due to the Roman principles of fides and constantia which required a man to keep his word, whether it was embodied in a document or not

Sponsio had a sacral origin so many people felt obliged to comply with their promise

Question 5

sWhat were the disadvantages of the oral formality in Roman law?

Answer 5

Inaccessible to deaf people

Required both parties to be in the same place at the same time- difficult with the expanding empire- although a stipulator could send his son or slaves to represent him

Cumbersome- if someone sneezed before answering or said the wrong verb form the stipulation could be declared invalid.

Question 6

How did the stipulation develop?

Answer 6

There was a gradual focus on written documents

Question 7

What is the significance of the sponsio stipulation?

Answer 7

Sacral origin
Diminished in importance as other verb forms began to be used
It was restricted to Roman citizens
Eventually even the use of Greek was possible provided both parties understood the language.

Question 8

What is the meaning of Unitas actus?

Answer 8

Unitas actus means single act and suggests that the execution must not be interrupted by an intervening act. was coughing enough to vitiate? Classical law required the continuous presence of the parties

Question 9

How did the structure of the stipulation change?

Answer 9

There was a degeneration of the classical stipulation form as oral formality gradually lost all significance- resulted from the commercial practices of the Hellinistic provinces

Even in classical law a document embodying the content of the stipulation was drawn up- this had a purely evidentiary function that the oral formality had been complied with. Nevertheless, the late classical lawyers still maintained the oral nature of the stipulation

The words no longer mattered and the only importance was that the parties had reached consensus at the same time and the same place. The sole remaining ground on which the stipulation could be invalidated was if one of the parties was not present. Justinian- it was sufficient that both parties were in the same town on the day that it was concluded. This shows that for all purposes the stipulation had been converted into a written contract.

Question 10

What does it mean that in classical law pleading was strict?

Answer 10

no issue could be brought before a judge unless it was contained in the regular formula or action or was added to it by exceptio

Question 11

Why was it often desirable to transform a bona fide action into a stricti iuris one?

Answer 11

Not useful in business transactions as you have to rely on the sympathies of the iudex

Because of the exceptio doli there remained restrictions on the conduct of the promisee. If it was evidently a stricri iuris obligation that you can do business with the money that you did not have- modern example of credit

Question 12

What are cases of supervening impossibility?

Answer 12

Stricti iuris obligations- A has promised B in a stipulation to deliver a slave. Before the slave is delivered the slave dies and A is unable to satisfy B’s claim. The judge has to absolve A as the performance cannot be completed

On the account of a stipulation concerning the delivery of a specific thing b could ask to be granted a condictio. A cannot hand over something that does not exist. Secondly, there was an evaluation of the pecuniary value of the slave at the time of the litis contestatio- is 0 because slave is dead

A cannot be condemned for any sum of money

Question 13

Initial impossibility

Answer 13

Vitiates the contract

Question 14

What if the death of the slave was attributable to A’s conduct?

Answer 14

This was unsatisfactory. If impossibility was in some way due to the behaviour of the person then it is deemed that the object of importance is still in existence. A will have to pay the market value of the slave at the time of the litis contestatio.

The obligation continues to exist- it is perpetual.

Question 15

Significance of mora debtoris?

Answer 15

Liable if he had delayed the performance beyond the due date and something happened even if it was out of their control

Question 16

What if the object deteriorated due to some fault of the promisor?

Answer 16

Obligation was perpetuated fictitiously . In the end he obtained judgement for the difference in value between the object as it actually was and what it should have been

Something which has been returned in a worse condition is deemed to not have been returned at all

Question 17

What happens when a specific sum of money is owed in a stricti iuris obligation?

Answer 17

Here, no fictitious perpetuation was required to keep alive the debtor’s obligation, even when the debtor had run out of money. The debtor remains liability to pay as it was not objectively impossible owing to the availability of money in general

Question 18

What were the consequences of mora debitoris?

Answer 18

Failure to make performance at the required time

It increased the liability of the debtor as he became liable for any incident which made performance impossible, regardless of whether it was due to his own fault.

For instance, the debtor in mora would be liable even if the thing were destroyed by a landslide- a landslide that would have occurred even if he got there on time

Question 19

What was necessary for perpetuatio obligation?

Answer 19

Culpa was necessary for there to be a fictitious perpetual obligation

Question 20

The judge’s determination of whether the person knew that the due date had arrived

Answer 20

The easiest way to do this was to give an interpellatio- essentially a special warning. If a special warning was given then the non-performance of the debtor can be attributed to fault.

Question 21

What were the grounds of nullity in a stipulation?

Answer 21

In stipulatio the incorrect verb was sufficient

Question 22

Grounds of nullity for a sale

Answer 22

Lack of consent with regards to the thing itself, price or the sale itself.
Intention must be taken into account as sale is a bona fide contract.
Error in corpore- error as to the identity of the thing being sold would vitiate the contract
Error in pretio- partial lack of consent with regards to the price was only acceptable when the lessee is willing to pay more
Error in negotio
Error in persona
Error in substantia

Question 23

What are examples of error in substantia?

Answer 23

Vinegar sold as wine.
Ulpian says that where something has been sold as wine that was in fact once wine but turned into vinegar in the meantime was valid- the liquid is still virtually of one and the same continuous being - this was a defect
However, the situation was different where the vinegar sold as wine was vinegar from the start- here the object of sale was an alternative substance- his error does not relate to the quality but to the substance and this invalidates the sale

Question 24

What was the action for metus or dolus?

Answer 24

The actio Octaviana enabled the disadvantaged party to claim back what he had been compelled to give

Question 25

What is metus cause?

Answer 25

Acts which were caused by fear were disapproved of
If A has forced b to perform to C, who in turn sells the object to D, neither C nor D has acted ‘because of fear’. Nevertheless, D’s acquisition can be traced back to the fact that B once had to make a performance under compulsion- it was essentially still based on metus

Question 26

What were the remedies for metus?

Answer 26

• The actio quod metus causa was the most potent weapon in the hands of a person who had acted under fear. It was a penal action for the defendant was liable for fourfold the value which had been extorted
• Secondly, it was ‘in rem scripta’- the defendant was not identified as the extortioner but only as the person who had acquired something on the basis of metus. This could be the person to whom the plaintiff had been forced to perform or also any other person into whose hands the object in question had ultimately come. E..g the bona fide purchaser
• Thirdly, the actio quod metus causa was an actio arbitraria- the defendant was able to escape condemnation and payment by simply restoring the extorted objects- there was an exclusion of infamia

Question 27

What were the other remedies for metus?

Answer 27

• The actio quod metus causa and the exceptio metus shared the important characteristic that it was ‘in rem scripta’. The person of the extortioner was not identified in the formula of the exceptio and thus it could be raised against any plaintiff, whether he himself had caused the fear or whether he was a bona fide third party to whom the defendant had been coerced to make the promise
• A had procured a stipulation from B through force. B sued him with the actio metus causa, which meant that A had the option of restoring B to the former position- entailed a formal release. A had, however, refused to give it and had consequently been condemned to pay the poena quadrupli
• He now sued B on the stipulation, which, though brought by metus, was still in existence. B could bar A’s claim with the exceptio metus

Question 28

What is the concept of initial impossibility?

Answer 28

The thing does not exist at the time of the contract. Vitiates the contract- invalid. However, if another person could in fact perform it was not impossibility. e.g. if I contracted the slave of a third party it was not objectively impossible to perform. An action could be invoked when the performance was merely difficult as opposed to impossible

Question 29

Initial impossibility and contracts of sale vs stipulatio

Answer 29

Stipulatio was a stricti iuris action so initial impossibility can lead to a condictio.

Such problems do not rise in contracts of sale as they are bona fide. there was a claim for unjustified enrichment where the thing had burnt down

• In other cases of objective initial impossibility the actio empti was available too
• The sale of a liber homo as a slave was also valid provided that the purchaser did not know about the true status of the person involved.
• Only where the object of sale had been destroyed before the conclusion of the sale does the question of contractual liability never seen to have been discussed.
• The sale was invalid in so far as it did not have its normal or typical consequences: the vendor did not have to honour his primary obligation, the purchaser did not owe the purchase price

Question 30

What was Boni mores?

Answer 30

• Invalidity of contract that violates good morals
• Papinian suggests that contra bonos mores are acts which offended ‘
• The sense of duty and the natural affection towards, gods, parents or near relatives, the respect or esteem enjoyed by a person in society and the innate sense of shame

Question 31

Impossibility

Answer 31

• A contract perfectly capable of performance at the time of its conclusion might be rendered impossible by subsequent events- e.g. slave dies after its sold- supervening impossibility
• Initial impossibiliy of performance prevented the conclusion of any valid contract for it showed the lack of any real intent to contract
• Impossibility in this sense could be either physical (e.g. touch the sky) or legal e.g. promise to sell sacred land
• The test of impossibility was objective rather than subjective
• If the performance would have been possible for another, the fact that it was impossible for the particular contracting party- as if a one-legged man promised to perform a high-jump of six feet- was irrelevant and the contract was binding.