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Chapter 2 ROMAN LAW: THE SYSTEM OF CONTRACTS The obvious starting place for such an investigation is Roman law which is not only the fountainhead of Western jurisprudence but has been and still is regarded as one of the finest creations of the human spirit. It would be generally accepted that no part of Roman law has been so admired or so influential as the law of contracts. Yet that system of contracts had grave defects. It would, of course, be unfair to criticise the Romans for not developing contracts to the point that we have, or, with hindsight, to judge them for not producing a general theory of contract. But we can properly criticise them for major defects which lasted for centuries and of which they were aware or at least ought to have been aware. The oldest Roman contract is the stipu/atio which existed as early as the Twelve Tables, the codification of the mid-fifth century B.C. It can be regarded as the basic contract and in many ways is very satisfactory because it could be used for any lawful transaction and was very simple. It was a unilateral formal contract of strict law (stricti iuris) but the formalities were far from complicated. The parties had to be face to face, the promisee orally asked the promisor if he promised to give or do whatever it might have been, and the promisor promised using the same verb. Originally only one verb could be used, 'Spondesne ... ?', 'Spondeo', but in course of time other verbs became allowable. The substance of the answer had to correspond exactly to that of the question.! Formalities for making a contract have two evidentiary functions. First, they demonstrate to the parties involved that negotiations have come to an end, that the parties are now agreed and are at the stage of committing themselves. Secondly they are evidence that a contract was made, and in the event of a dispute provide proof both of the existence of the contract and of its terms. This second function is by far the more important. Yet the formalities for stipu/atio perform only the first function and not also the second.2 This grave weakness of the stipu/atio was well-known to the Romans yet was never directly remedied. To provide evidence it beCopyrighted Material Roman Law: the System of Contracts 13 came common either to make the stipulatio in front of witnesses or to record the stipulatio in a written document. So usual did the latter course become that modern scholars discuss whether from the third century A.D. onwards the stipulatio had become a written contract.3 It might be suggested that this lack of evidence in the stipulatio was in fact rather convenient since the stipulation could then be proved in more than one way. But apart from the fact that it is bizarre to have requirements of form which are absolutely essential for the validity ofthe contract but in themselves do nothing to prove the contract was made, we can be sure that the situation caused difficulties. Only too often would individuals make a stipulatio , content with the formalities of the contract, innocent of or indifferent to the difficulties of proof. The difficulties arising for a transaction when there was neither witnesses nor writing are well brought out by Aulus Gellius, Noctes Atticae 14.2, who refers not only to his own time, the second century A.D., but also to Cato the Censor who was active from the late third century B.C. The form of the stipulatio with its built-in limitation is probably to be explained by its origins. In my view the stipulatio is likely to have arisen in circumstances in which the defect would not be apparent. Unfortunately the early history of stipulatio is very obscure and cannot easily be uncovered, and it would be wrong in this book to maintain one theory as opposed to another. But it should be stressed that the two theories which are most widely held support this idea. Thus, according to many scholars, the use of the verb spondere which is etymologically connected with the Greek O"1ttvllro, 'I make a drink offering', points to a sacred background which involved the swearing of an oath.4 Since a Roman oath was the calling of a god to witness and was not actionable before any tribunal, sacred or civil,s human witnesses would have no legal role to fill. The other...

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