A History of Contract Law

Under the Roman law of obligations, there were four forms of contract: consensual contracts, verbal contracts, contracts re and contracts litteris. Furthermore, there were three forms of verbal contract: dotis diction (concerning arrangements for dowry prior to marriage), iusiurandum liberti (the oath of service made by a freedman immediately after his manumission), and stipulatio. This third form of verbal contract is regarded as the most important of the three due to the breadth of situations in which it was used.

The other forms of verbal contract are applicable in limited circumstances only whereas stipulatio evolved and extended until it was of use in almost any contractual situations and was viewed as being of unlimited scope. This essay will consider the origins of stipulatio and examine the way in which it attained virtual universality as a means of conducting contractual dealings before it was effectively limited in scope in the time of Justinian. The origins of stipulatio are not clear and certainly it appears to pre-date lex duodecim tabularum (the Twelve Tables, 449 BC) in which well-established concepts such as the rituals and procedures for entering into formal arrangements such as contracts were accepted and incorporated into legal pronouncements. It is thought to be a secularised development of the concept of sponsio by which one party made an oath to the gods to take formal responsibility to pay the debts of another person. This developed into a secular guarantee to undertake and discharge the financial responsibilities and arrangements entered into by a third party. It is for this reason that the form of words that were used in the formulation of stipulatio was promissory (spondere). Therefore it is clear that the origins of stipulato were not contractual but instead it evolved from the practice of entering into a legally binding promise to do something that one was not otherwise obligated to do, i.e. to pay the debts of another person. The role of the oral undertaking extended into the realm of litigation as a way of binding one party to comply with their obligations. In doing so, it evolved into a format whereby the party making the declaration was bound to honour their verbal promise given in response to a question during legal proceedings. For example, the cautio de dolo (promise regarding fraud) became a commonplace part of legal proceedings whereby one party promised to restore property to another’s care and custody without fraud or dissemblance. Another common judicial stipulatio that featured regularly in legal proceedings was the cautio damni infecti which involved a guarantee by the owner of dangerous property to indemnify the owner of neighbouring property against damaged caused.

These illustrations demonstrate the unilateral nature of stipulatio as it creates an obligation on one party only to, for example, return property or indemnify against damage to property. This unilateral obligation is, of course, contrary to the more familiar bilateral nature of contractual obligations in which the parties enter into reciprocal binding obligations.

Notwithstanding this, stipulatio developed further until its use in contracts became widespread to the point that it overlapped with many other forms of entering into contractual undertakings established under Roman law and became the ‘contract for all seasons’ which, arguably, impeded the development of general principles of contract law in relation to these other forms of contract.[1] It is from these origins that stipulatio evolved as a prevalent means by which parties entered into a strict iuris contract based upon a formal promise made in answer to a formal question that imposed a binding and unilateral obligation upon the promisor to act in accordance with his promise. For example, a promisee might ask ‘do you agree to pay me one thousand sesterces?’ to which the promisor would reply ‘I promise’. This format demonstrates the way in which a unilateral oath or undertaking has evolved into the basis for a binding contractual obligation. The oath-like nature of the stipulatio is emphasised by the traditional requirement that particular words were used that were indicative of the promissory nature of the agreement: the promisee must use spondesne (do you promise) and the promisor must respond using spondeo (I do promise). As the stipulatio had the affect of creating a binding and enforceable agreement between the parties, it was deemed to be important that this was facilitated using clear and unequivocal promissory language which carried an unmistakable message of obligation. A further departure from the familiar basis of contractual dealings is evident by the lack of requirement of consideration to create an enforceable bargain; this was deemed unnecessary because of the oath-like nature of stipulatio so no further evidence was needed of the intention of the parties to enter into a binding arrangement. The essence of contract is consensus therefore the original rules of stipulatio were formulated around the requirement that the wording of the question and answer had to demonstrate agreement and uniformity as to the nature of the obligation that was being created. There were also requirements regarding the formalities that must be complied with in order for the stipulatio to give rise to a valid, binding and legally enforceable obligation and these were viewed as being important for the protection of the parties given the verbal nature of the agreement (verbis solumnibus). The need for certainty was achieved by the requirement that the subject matter of the agreement be identified specifically in the question.

For example, there would be no binding contract if the promisee asked the question ‘do you promise to pay me what is owed?’ as this does not identify the subject matter of the agreement with sufficient precision. As the obligation that would arise from such a contract fell only upon the promisee, any ambiguity in the question was construed against the promisor, making it incumbent upon him to ensure that the question was phrased with precision and identified the subject matter in the clearest possible terms. Equally, if the promisor provides a conditional response to the question, there is insufficient certainty to give rise to a binding obligation. For example, if the promisor replies ‘I promise to pay when I receive money to which I will be entitled if I am able to sell my land’ as this is contingent on some event which may not happen.[2] The need for consensus and certainty led not only to the requirement that the question and answer must match each other perfectly but also to the need for the question and answer to be part of a single transaction, i.e. the answer must follow immediately from the question without any significant lapse in time. These requirements, of necessity, gave rise to the further necessity that the parties must be present in person (inter praesentes) in order for these formalities to be completed and also to the requirement that each of the parties must be people capable of speech; ‘a dumb man can neither stipulate nor promise’.[3] Despite these formalities, the stipulatio became an increasingly ubiquitous means of entering into legally-binding undertakings displacing other forms of contractual formation in popularity. This was largely due to the unlimited application of the stipulation; it could apply to any subject matter provided that it was precisely defined within the question that was asked by the promisee.

Inevitably, as the application of the stipulatio broadened and its popular grew, so the rules relating to its formulation evolved to accommodate the more diverse range of circumstances that it came to embrace. One of the most notable consequences of this was recorded by Gaius as the words used in the formulation of the stipulatio expanded beyond the original requirement that the question and answer be formed using the verb spondere. Gaius notes that the alternative forms of words included other verbs of a promissory nature: dare (I will pay), promittere (I promise to pay), fidepromittere (I promise on my honour to pay), fideiubere (I guarantee on my honour to pay) and facere (I will do as you ask).[4] This expansion of the words that could be used in the question and answer was a gradual development but the requirement for the agreement to take the form of a question and a matching answer was not relaxed until 472 AD when Emperor Leo decreed by way of constitutio that the verbis solemnibus requirement was to be relaxed to the extent that an agreement was binding irrespective of the form of words that was used, provided that there was some contractus verbis (verbal agreement) that was indicative of the intention of the parties. As the oral nature of the stipulatio was retained, it followed that the requirement that the parties to the contract still had to be present at the time that the agreement was made. The relaxation upon the use of promissory words introduced the possibility that lack of certainty would cloud the bargain and obscure the nature of the contractual obligations that had been created. The flexibility of language also gave rise to a possibility that there could be doubt as to the point in time at which the obligation came into being.

Previously, under the initial rules regulating the stipulatio, the point at which an obligation arose was clear as this occurred as soon as the promisee replied spondee. This growing fluidity of the language of the formation of the stipulatio and the associated decline in certainty may have been the explanation for the parallel growth in the recording of the stipulatio and its terms in writing (cautio). Obviously, as a verbal agreement, there was no necessity to do so but the use of cautio became increasingly commonplace until it became the norm by the time of the late Republic. Moreover, in tandem with the relaxation of the form of words noted above, there was a corresponding decline in the recording of the question posed in writing. Provided the cautio recorded that a promise had been made, it was assumed that the question had been asked that corresponded with this unless evidence to the contrary would be adduced. Therefore, although there was never any requirement that the stipulatio be made or, rather, be evidenced in writing, the default position seemed to be that the majority of agreements made by stipulatio were the subject of written record, largely due to the evidential benefits that accompanied this practice. As this essay explains, the scope of stipulatio expanded gradually from its specific purpose as a process by which one party swore and oath to honour the debts of another to a more widespread means of entering into any binding oral undertaking.

This then extended to encompass contractual situations, ultimately giving rise to the widespread practice of the formation of verbal contracts make following the issue of specific words in the form of a question and corresponding answer. Gradually, the specificity of the wording was relaxed until any form of words would suffice, providing they demonstrated the intention of the parties.

Increasingly, these agreements were recorded in writing, although there was no requirement that they be recorded; they were binding as oral agreements and the reduction to writing was merely evidentially expedient than a necessary element for legal enforceability. Stipulatio provided a flexible means of enshrining an obligation with the force of the law, largely due to its verbal nature and its applicability to any subject matter whatsoever. Its growth as a means of entering into legal relations was thought to be one of the key reasons for the dearth of development in the law concerning the formation of contractual relationships by alternative means during this period.[5] Irrespective of this, the rules concerning the operation of stipulatio are a demonstration of the evolution of fundamental underpinnings of contract law. In particular, it illustrates the genesis and longevity of the importance of consensus (the requirement that the intentions and understanding of the promisor and promisee correspond) and certainty (by requiring the satisfaction of formalities concerning the identification of the subject matter and by requiring the agreement of the parties to be manifest in their dealings) in contract law.[6] Word Count: 2000 words Bibliography Brokowski, A., (2005) Textbook on Roman Law, Oxford: Oxford University Press Du Plessis, P., ‘The Protection of the Contractor in Public Works Contracts in the Roman Republic and Early Empire’ Journal of Legal History (2004) vol. 25, pp. 287-314 Evans-Jones, R., ‘Unjust Enrichment, Contract and the Third Reception of Roman Law in Scotland’ Law Quarterly Review (1993) vol. 109, pp. 663-681 Meyer, E.A., (2004) Legitimacy and Law in the Roman World: Tabulae in Roman Belief and Practice, Cambridge: Cambridge University Press Nicholas, B., (1975) An Introduction to Roman Law, Oxford: Clarendon Press Pugsley, D., (1972) The Roman Law of Property and Obligation, Cape Town: Juta Press Stein, P., (1999) Roman Law in European History, Cambridge: Cambridge University Press Zimmermann, R., (1997) The Law of Obligations: Roman Foundations of the Civilian Traditions, London: Kluwer Law International 1

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Footnotes

[1] Brokowski, A., (2005) Textbook on Roman Law, Oxford: Oxford University Press, p. 277

[2] Gaius Institutes 3.102

[3] Justinian Digest 3.19.7

[4] Gaius Institutes 3.92

[5] Brokowski, A., (2005) Textbook on Roman Law, Oxford: Oxford University Press, p. 277

[6] Evans-Jones, R., ‘Unjust Enrichment, Contract and the Third Reception of Roman Law in Scotland’ Law Quarterly Review (1993) vol. 109, pp. 663-681

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