The Proposed Generality of Contract Law During the Roman Republic
David Hobbs
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“The proposed generality of contract law during the Roman Republican era”
19 October 2012
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The proposed generality of Roman contract law during the Republican era:
The Roman republic is known for many things. It is especially known for it developments affecting modern day law. These developments are said to be the very essence of modern day law. It is important for us to know how and when these developments took place in order to understand how our society developed into what it is today. I intend to look specifically at the law and how it came to be and developed into what we know it as today. More specifically I intend to make a detailed investigation into contract law. Contract law has a detailed history but its interpretation differs, it appears, from source to source, modern and ancient. There exists a debate, to which I will later refer, involving the generality of contract law that has existed between authors for close to a century. It is this debate I wish to research and report on and hopefully come to a definitive conclusion.
Various theories exist showing that contract law during Rome’s republican era was in fact not general at all but was instead a compilation of laws and regulations applying to specifically different circumstances. These are the views shared by various scholars throughout modern history. “It is often said that the Romans never developed a system of contract but only of individual contracts.” “The classical law of contract was a complicated and heterogeneous collection of legal rules which seems to have developed piecemeal to satisfy the needs of commerce.” The arguments of the above authors are those I wish to challenge based on knowledge from other authors as well as what we know today as a collective society.
It serves us well to look at a definition of a contract as understood by a trusted contemporary source. The Encyclopedia Britannica frames it as follows, “A promise enforceable by law. The promise may be to do something or to refrain from doing something.” It goes on to say, “The law of contracts considers such questions as whether a contract exists, what the meaning of it is, whether the contract has been broken, and what compensations are due to the injured party.”
In order to understand and evaluate the statements made by Thomas and Pugsley we must dissect various outlooks and sources concerning the Republican concept of contract law in its historical sense meaning that a detailed assessment is required of the agreements that existed during the republic. I will start by looking at the Republic as an historic period, analyzing its key moments and turning points that could have affected the development of contract law. Next I will write about the history and development of contract law in order to get a more detailed and focused idea of what we will actually be dealing with. Following this it serves us well to outline the tension which is the focus of this paper and a result of the preceding introductions. After discussing this we must look at the sources I will be using in order to get a general idea about the reliability and relevancy of the information I will be using.
After this I will introduce further details and begin discussing individual forms of contract making sure to point out the parts of them that add to my argument. This discussion will represent the bulk of my argument. Finally after weighing up all the evidence I will clarify my findings and present a conclusion based on all the facts and evidences I have discussed.
The aim of this paper is to prove to the reader that during the Republican era of Rome there did in fact exist a type of general law of contract, if not directly then indirectly. I will attempt to prove this by showing that, although there might have been different rules for different situations, the main idea or concept behind these rules and classifications came from one central idea which lent its identity to these other forms of contracts, therefore making it appear as though they were completely separate when in fact they were actually part of a system.
I. HISTORY OF THE REPUBLIC:
From this brief history of the Republic one will notice that Rome was never in a constant enough state for any law to develop in a manner not considered piecemeal. Rome’s population was constantly changing which brings a myriad of social factors that could have affected especially the private law sphere. Rome’s government and its leadership structure never stayed the same long enough during the republic for the law to develop around such a system. It is important for us to know this if we want to understand exactly where and how contract law developed.
The Republican era is believed to have lasted from 509 BC until 31BC. It encompasses an era lasting from the time the Tarquins were expelled from Rome, thereby ending the regal era, until the famous battle of Actium that took place around 31BC.
Upon the expulsion of the Tarquins it was decided that Rome would have no more kings and that all the royal powers previously vested in a single figure would now be given to two democratically elected people called Consuls. These consuls were believed to have been democratically elected by the senate of Rome. As for the King’s pontifical duties they were to be assigned to a third position henceforth known as the Rex Sacrificulus or Rex Sacrorum. During this time of change the Roman senate was restored and given back its power. The senate consisted of Patrician as well as Plebeian members who were representatives. This period also saw a series of documents being drawn up in honor of the developments seen thus far. These documents outlined the legal rights of Roman citizens (excluding women, slaves and resident aliens).
The Republic saw the introduction of three major political components. The first was the introduction of two consuls which formed the executive branch of the government. They shared supreme military authority. The consuls served a one year term after which they would retire into the senate for life. Each of them had a veto right against the other which in effect gave supreme Roman power equally to two people changing every year. The second was the introduction of the Roman senate, an advisory body with legislative duties and responsibilities. Thirdly there was the commission of the assemblies; one for the centuries and another for the tribes which included every citizen. While the assembly of the tribes included everyone, the century assembly was reserved for those who could afford to fight in Rome’s armies.
The tribal assembly was responsible for rejecting or approving laws and attempts at war while the centuries were directly responsible for the election of the consuls.
It is said that the republic was classified by its checks and balances put in place so that a regal system would not happen again. The idea was that no one person could seize ultimate power. This did not mean that anyone could be a consul though. It was said that unless you had an ancestor who was a consul you could not yourself become one.
The theoretical exclusion of plebeians from ruling Rome and not being given enough power led to a split in Roman citizens. The patricians represented less that one percent of Rome’s population and were legally and socially superior to the majority of citizens. They had earned their position through wealth and land ownership over many years and had a monopoly of social, political and economic power even though the Plebeians heavily outnumbered them. The Plebeians on the other hand consisted of peasants and people who, although had wealth, could not become Patricians due to their ancestral position. The competition between these two group is known as the ‘Struggle of the Orders’. The struggle arose because Plebeians could no longer, by law, be in the senate (which had most of the power). They were allowed to vote but their votes were often overpowered by a skewed voting proportionality system used and supported by the senate. The result was that the Plebeians decided to leave Rome as a state and start their own state. This led to a near collapse of the Roman economy and the Patricians therefore asking the Plebeians to return to Rome. The Plebeians were given the right to elect their own tribunals and were given an absolute veto power over the actions of the state.
This political upheaval resulted in the creation of a document known as the XII Tables in 451 BC. It was drafted as a response to the desire to know the law by the Plebeians as well as an accommodation provided for their return. The document effectively codified the laws concerning specific matters, crimes and the relations among other family members. This is considered to be an important event in terms of the development of the law, and more specifically the law of contract, because it recognizes only certain types of contracts specifically.
In 396 BC Rome destroyed long time enemy, Veii. This represented Rome’s expansion over the Mediterranean world. After this Rome conquered many other cities effectively making them partners in their quest for domination. This is a clear example of Rome making use of the ‘compromise and assimilate’ doctrine. This idea led to the building up and strengthening of the Roman republic. During this time Rome was continually at war beginning with the First Punic War in 264 BC against Sicily then the Second Punic War over Sagantum in 281 BC then the Third Punic War against Carthage in 149BC then the Macedonian war in Asia Minor. These wars eventually led Rome to be the victor over Africa and Asia Minor.
Rome had developed an efficient tax system by now and was effectively charging it’s new ‘Provinces for the privilege of being part of the Roman world. The system did inevitably become corrupt because Roman leaders were not concerned with how much profit tax collectors made. This new flow of money could be seen to have increased the demand for more complicated contracts and maybe even a system of contract.
From 133 BC Rome experienced a revolution in the form of many civil wars due to a change of loyalties of soldiers based in far away provinces. By now Patricians had also begun buying the votes of peasants who desperately needed the money due to heavy tax increases.
The above problems led to a threefold problem for Rome. The senatorial class was becoming more powerful and numerous. The urban masses were no longer fulfilling their role and finally the army was beginning to disagree with the senatorial class. Eventually Rome became divided into two main factions. The Optimates, whose interests law only with wealth. They were conservative and scarce but still managed to maintain power over Rome. The Populares are described as “Champions of the depressed portion of the citizenry.” They wanted a redistribution of land amongst all those who deserved it, not only the wealthy class. This class especially highlighted peasants who were moving to the city in their masses in order to sell their votes.
The clash of these two groups led to a civil war leading to the death of prominent figures. These Populares leaders were replaced with more leaders. In particular Gaius Gracchus who’s wish it was to transform Rome into an actual democracy once more. He had gained the support of the public assembly. The senate did not approve of him though and so declared martial law in order to have him killed.
Later, Germanic tribes from North of the Danube River invaded the Republic. This attack exposed the true weakness of the senatorial system. Rome sent poorly organized armies who were unwilling to fight and led by corrupt leaders. The Germanic tribes were eventually defeated by a private army led by Gaius Marius who had gained his power through the abolishing of the laws which stated that a soldier had to one land. The result was that his army consisted of poor men who wanted to fight. His popularity led to his election as consul several times.
Gaius was eventually overthrown by Sulla in 88 BC. When Sulla left to conquer Mithridates Rome became once again subject to rival factions battling for power. When he returned he killed hundreds of his opponents and named himself dictator for life. He refashioned Rome and introduced measures which afforded the army generals and tribunes less power than before. He made them unable to pass a law without the senate’s approval. He made the office of tribune a lifetime one which meant that men with political ambitions would no longer be attracted to it and finally he limited the term of governor to one year as to prevent any one man from becoming a hero to his men. Basically Sulla was trying to prevent another Sulla from happening.
We skip ahead in time now to where the second triumvirate has achieved power through the death of Ceasar. This eventually leads to the famous conflict between Anthony and Octavius culminating in the battle of Actium which Octavian wins and is henceforth known as Augustus Ceasar. Once he had cemented his power we see the beginning of the empire and the end of the Republic.
II. HISTORY AND DEVELOPMENT OF CONTRACT LAW
When the Republic began it is believed by some authors that there was no contract law as such. There existed no idea or concept of a body of rules governing transactions which gave rise to obligations. This opinion entails instead the existence of individual transactions that could in themselves lead to separate but binding obligations. They were an oath (Sponsio), a verbal agreement (stipulation) and a loan for consumption (Mutuum).
During this period it was not certain that an agreement itself between a creditor and a debtor could lead to an obligation. Agreement was instead believed to have only been seen as evidence of some sort of transaction which would itself lead to obligations. The binding element was noted as the factual actions taken by each party otherwise referred to as “the external facts giving evidence of their [The parties’] intention.” It was as if the actions or words said by each party were somehow magic and bound them no matter what their state of mind was. The justification for this way of thinking was that no one could truly tell what was actually happening inside the thought of another person which made it unreasonable to base the validity of an agreement on what someone was supposedly thinking. This theory “harmonizes with that materialism which is the primitive general characteristic of ancient Roman law.”
A contract in this sense was recognized as an “agreement between two or more persons whose main legal consequence is an obligation with an effect personal rather than real.” Watson says this but does also admit that this is a rather crude definition but serves its purpose of explaining how a contract was perceived in a way in which is more understandable in modern times.
By 154 BC a gradual development in the way in which a contract was seen and treated had happened. I will be providing evidence of and for this change later. The development is confirmed to have had happened between the second and third Punic wars due to the influx of Roman citizens. The development is seen here as an economic adaptation of a certain type of agreement. By this date Rome’s population had expanded due to Italian farmers being driven from their farms for fear of becoming slaves and fleeing to Rome. Their land had been conquered by the Romans in the Punic wars. This development is seen as a result of necessity in order to compensate for the amounts of people Rome was now having to accommodate. The fact that more people were becoming part of the urban city brought with it the obvious ramification of the necessity for a better suited economic system and one of the most effective ways of doing this would be to improve the system in such a way as to deal with people’s private interactions on a more comprehensive level. This is why we see the introduction of these more complex agreements. Up to this point Collinet still insists that there is no formal recognition of a general law of contract. He sees this development as a mere increase in the specificity of transactions recognized as having correlative obligations. The word ‘contractus’ was not yet recognized in its general sense and was only in fact discovered in a 6th Century Greek paraphrase of Justinian’s institutes.
The development saw the recognition of two types of obligation creating transactions: Perfectly synallagmatic and Imperfectly synallagmatic transactions. What this means is that some contracts bound each party involved to give and receive something. The evidence for this lies in the discussion about the specific contracts I will discuss later. In the perfectly bilateral agreement we see the emergence of a contract of sale (Emptio-vendito), letting/hiring (Locatio Conductio) and a partnership (Societas). The the imperfectly Synallagmatic agreements we see the recognition of a suspensive pledge (Fiducia), a loan for use (Commodatum), a deposit for safekeeping (Depositum), a pledge (Pignus) and an unrewarded commission (Mandatum).
At this point any outsider looking in would note the emergence of a crude general law of contract by noticing the emergence of certain rules applying to more than one situation. We would also have to note that the Romans at the time would not hold such a belief but would still only recognize nominate transactions and their formalities meaning that they would acknowledge only specific agreements in an individual manner. The advantages of the belief in this ‘nominate transactions only’ system is that certain situations would become self-explanatory in terms of the appropriate remedies and relief because of the exactness and precision of said remedies. Disadvantages would include the fact that some situations would become a mystery with regards to how they were dealt with. Here is where we do notice some inconsistencies with the overall development of Roman Law.
III. TENSION
Some believe that there did exist a general law of Roman contract during the Republic (such as Watson) while others insist that it was not general until many years after the Republic had ended (Collinet and Thomas).
The argument against generality (for specificity) relies on the fact that the existence of individual nominate contracts must prove beyond a reasonable doubt that there was no general law of contract during the republic. If there was in fact a general law then there would have been no need for such separate actions for different transactions. Each type of transaction has a well connected action which allows for its separate treatment therefore denying the existence of any kind of general law for this type of transaction during the Republic.
The argument for generality relies on an agreement known as the Stipulatio (which we will discuss later). This argument says that all the individual nominate contracts which emerge seemingly on an independent basis are actually all derogations or things that are a direct manipulation of the Stipulatio. The argument goes further to say that the general rules for the Stipulatio applied in some shape or form to every single type of transaction that we would now consider to be of a contractual nature. If this were true, then it would render these nominate transactions as falling under the Stipulatio. This would then give all these contracts the ability to be dealt with in a general manner even if they were not recognized as such during Rome’s Republican era. This idea would make all transactions which led to obligations during the republic fall under what would now be seen and recognized as a general law of contract.
The above tension is the one I wish to address in the manner described earlier in this paper.
IV. SOURCES
There are number of sources that will prove that the Roman republic did have a system of contract whether they knew it or not. The sources may have been written during or after the republic but their relevancy I will be discussing and commenting on before I use them.
The first source is the XII Tables, which I have mentioned before as a prominent result of Rome’s turbulent transition to a democracy. The tables were drawn up or captured by a group of ten men called the decemviri in 451 BC. “It was decided that there be appointed, on the authority of the people, a commission of ten men by whom were to be studied the laws of the Greek city states and by whom their own city was to be endowed with laws.” The tables were written due to the persistence of the Plebeians of Rome because they felt that their rights were being infringed without codified law. They are the result of a long struggle of the two main factions of Rome as mentioned earlier. Until the XII Tables, there had not yet existed an actual piece of codified law which put the Patricians in a superior ruling position.
The laws were written on ivory (or bronze) tablets and were made available on a rostrum for all to see which made them public and available for all to see. There were twelve tables, two of which were later added in order to correct or fine-tune the previous ten. These tables are recognized as Rome’s first piece of codified law and the originals were only destroyed in 390 BC when the Gauls sacked Rome.
The XII tables are not seen or recognized by scholars as a very comprehensive source because they are somewhat primitive and incomplete. They only briefly outline the main laws of the land and even then not in much detail. Another factor contributing to this unreliability is the fact that the tables exist only in fragments or in secondary references by other authors making it an unreliable source from which we can draw little to no relevant information on the generality of contract law during the republic. Adding further to the detriment of this source is the fact that it does not specifically mention agreements. Instead it focuses on the procedure of acquiring an owed debt; including how to initiate proceedings and the enforcement of judges. As a source it tends to focus on procedural law as is typical of codified laws from this era.
The next source category I wish to examine are the commentaries and institutes of various jurists. During the republic jurists were responsible for giving advice to certain kinds of people. The advised judges who were normally experienced but sometimes lacked the appropriate level of judicial knowledge in order to make an informed decision. They advised praetors who were responsible for drafting edicts and often made use of this advice in doing so. They advised Magistrates and Provincial Governors and many other high offices. Although their advice was widely sought it was not binding and did not create any kind of precedent. Their advice forms a well known source of law which “helped to elucidate the law, to give it shape, and to fill in the gaps.” Jurists performed other functions as well such as: drafting wills, coaching people involved in auditory ceremonies, helping legal litigants with their presentations for court and some even taught professionally. The jurists are also responsible for the writing of many pieces of text including commentaries on the XII tables, statutes and monographs on specialized pieces of the law. Borkowski and Du Plessis summarize it well by saying that “Juristic literature converted Roman law into science.”
Some examples of famous reliable jurists include Sextus Aelius (A Consul in 198 BC), Quintus Mucius Scaevola (Tribune in 106 BC), Aquilius Gallus (Praetor in 66 BC) and Servius Sulpicius Rufus (Praetor in 65 BC).
Juristic commentaries are known to be reliable because of their detail and historical accuracy when compared with other contemporary sources. Their influences came from many different areas such as politics, existing laws and from basic living amongst the Roman people. From this notion we must believe that they are the best representation of what happened during the time the report on in their commentaries or monographs. This being said it appears as though they were responsible for the rigid development of Roman law. It is clear to see that their texts will be valuable because of their detail and perceived historical accuracy.
An example of one such author (and one I will make good use of) is Paul. Born Julius Paulus he was made captain of the guard by Alexander Severus. He was known as a prolific writer who added 2081 extracts to the Corpus Iuris Civils being outdone only by Ulpian in this regard. His writings are seen as a reliable source on the republic and in particular, contract law. Examples of these contributions will follow on when I discuss the particular contracts. His monographs are seen as reliable to many scholars.
Another example I will be making good use of is that of Ulpian. Born Domitis Ulpianus he was known as a contemporary to Paul. Ulpian served in public life and was promoted by many famous rulers such as Alexander.
Other jurists include Pomponius, Venalarius, Neratius and Florentinus.
The next source I believe to be equally important as the one I mentioned above. They are the edicts of magistrates. During the republic high-ranking magistrates had the right to issue edicts or “Legally binding directives within their appropriate sphere of jurisdiction.” During the late republic these edicts came together to form what is known as the ius honororum or “Law laid down by the magistrates.” This was seen as a supplement to the main body of law at the time. “The Ius Honorum infused Roman law with new vigor and a fresh direction, transforming an introverted, parochial body of law into an outward-looking, cosmopolitan system.” These edicts were published on wooden board and displayed in the forum for the same reason the XII Tables were displayed there.
V. NOMINATE CONTRACTS
As previously mentioned the Roman Republic had in a set of nominate agreements which could, if performed correctly, lead to binding obligations. I will now enumerate these beginning with the one I think is the cause for my belief in an abstract system of contract during the Roman republic, the Stipulatio. I will discuss each on in detail before concluding with a statement on their generality which I believe will encompass them all as well as their individual developments.
A. STIPULATIO
The Stipulatio is believed to be the key to providing the generality of Roman contact law during the Republican era. For example, Zimmerman believes it to be “the backbone of the contractual scheme of Roman Law.” A different well-known author, Alan Watson, believes the Stipulatio to have been the method used to form all contracts. He refers to the Stipulatio as an “anachronistically general theory of contract.”
Although the origins of the Stipulatio are obscure it is believed to have been a well-developed concept with origins dating before the codification of the XII Tables. Gaius tell us that it was enforced during the republic by use of judicis postulatio.
The Stipulatio is described as a “form of contract based upon a simple question and answer.” It is what is known as a formal stricti iuris unilateral contract and can be described further as “a verbal expression in which the man who is asked replies that he will give or do what he has been asked.”
The actual Stipulatio ceremony was a short and simple one consisting of a question by the promisee and a reply by the promisor accepting the responsibility. The promisee would begin by saying “Dari Spondes?” or “Do you engage?” and the promisor would reply “Spondes” “I engage”. From this one can clearly notice that the Stipulatio was formulaic. The promise would ask the promisor to fulfill a certain verb action and the promisor would respond paying careful attention to the word he used in his reply. As previously mentioned the words used in the Stipulatio were very powerful which meant that merits would not be considered when a case was brought fourth for adjudication. Factors such as fraudulent misrepresentation, error in substance or even contracting by extortion were not taken into account as long as the words were correctly said and the ceremony was correctly initiated.
There were various rules that applied generally to the Stipulatio. It is important to enumerate and discuss these in order to compare them with other nominate contracts. The first one was known as the ‘Pecunia Traiclicia’ and is described as follows, “If the promisor binds himself to pay a penalty in the event of non-performance, he is not bound to pay the penalty if his non-performance is due to the stipulator.” The second one was the ‘Culpa Intervenit Debitoris’, which meant, “If the promisor delays performance and performance becomes impossible he is not released from his obligation.” The third and final one was the ‘Pro Portione Sua’ which is described as follows, “If a promisor dies leaving several heirs and one of them commits a breach of the stipulation for which a fixed monetary penalty was established, then, if the stipulation admits for division, only the person in breach is liable and that only for his share; if the stipulation does not admit of division all are liable for their respective shares.”
The Stipulatio effectively represented the Republican belief of a separation between an actual agreement and its ability to create obligations by itself. The Stipulation did not in itself require actual intention, but instead the words mentioned were seen as magic and binding. Even though this may have been true, the words used were paid great attention to because they were supposed to show intention and an agreeing mindset. “The acts of stipulator and promisor must be continuous, though a moment or two may naturally intervene. The reply must be made when the stipulator is at hand. If, after the question, something else is begun, the proceeding is invalid, even if the reply is given on the same day.”
It is clear that there was a potential power of versatility possessed by the Stipulatio. In theory it can be said that it could be used for virtually any purpose. The formula could be used to bind anyone to anything if the correct words were used. Its existence is believed to be the key to proving the existence of an abstract general rule of contract during the Republican era. According to Ulpian it even transcended language barriers; “It makes no difference whether the reply is made in the same language or in another. For instance, if a man asks in Latin but receives a reply in Greek, as long as the reply is consistent, the obligation is settled…The writings of Sabinus allow it to be true that all tongues can produce a verbal obligation, provided that both parties understand each other’s language, either of their own accord or by means of a truthful interpreter.”
The development of the Stipulatio over time, due to factors mentioned previously in the ‘Contract History’ section, eventually led to any restriction placed on it to fall away. This made it possible to make any promise legally enforceable by making use of a designated ceremony. Author, Pugsley disagrees with this point stating that the Stipulatio was not developed enough to accommodate all kinds of agreements during the republic and that “such a solution was not originally available…The Stipulatio was not the simple and general solution to all contractual problems to which it later became.” He goes on to say that the developments were actually a response to economic events, “the attempt is sometimes made to explain in economic terms why each contract arose when it did.” Watson’s response to this is that, “each of the contractual agreements, however, whether it be for a loan for consumption or sale, could be cast in the form of one or more stipulations.” Zimmerman agrees by describing the Stipulatio as being universally applicable “provided only the simple, oral formality was complied with, every lawful agreement could thus be made enforceable.” He also describes it as foundational to modern day contract law.
The above argument is enforced by Muirhead’s recognition of the Stipulatio as one of “the few events in the history of private law were followed by more far-reaching consequences that the introduction of the stipulation.” He believed that the Stipulatio played a large role in developing the roman concept of a contract and that in its versatility its purpose was simply to note the undertaking by one man in favor of another. Without it, he says, every agreement would have had to rely on simple good faith which would not make for a very reliable system and would invariably lead to corruption and failure.
I will now enumerate and discuss the other nominate contracts making sure I show how they can be represented as a Stipulatio.
B. MUTUUM
A Mutuum was known as a “loan of money or other Res Fungibles for consumption.” Res Fungibles are things that can be weighed, numbered and measured or in other words “This kind of lending happens in relation to those things which are dealt in by weight, number or measured.” A Mutuum is “a contract by which the owner of a personal chattel, called the lender, delivers it to another, known as the borrower, by which it is agreed that the borrower shall consume the chattel loaned, and return at the time agreed upon, another chattel of the same quality, kind and number, to the lender, either gratuitously or for a consideration.” It is a unilateral contract in which the borrower was responsible for restoring the value of that which he had borrowed in the same currency which he had borrowed it.
C. COMMODATUM
A Commodatum was known as a “Loan of a res for a specific purpose.” The borrower would have to return the res by a specific date, return it in a good condition and not use it in any other way other than stipulated in the contract. The lender had to allow the borrowed the use of the res as agreed, compensate the borrower for all extraordinary expenses caused by possession of the res and compensate the borrower for any extraordinary damage caused by the res owing to a defect. These rules are explained by Ulpian, “There are clearly cases in which the borrower will be liable only for willful harm, for example, when that is what is agreed, or where the loan is only in the interest of the lender, as by a man to his fiancée or wife to enable her to dress with greater dignity for her presentation to him or by a praetor putting on games to actors or indeed by someone only too glad to lend to the praetor.”
D. DEPOSITUM
A Depositum is described as “A contract whereby one person (Depositor) gives to another (Depositarius) a res to be kept gratuitously and returned on demand.” This agreement has a complicated history because of the existence of a number of sources claiming different actions for defaulting on a contract of Depositum. Jurist Paul gives us the following account, “On account of deposit an action is given by the XII tables for double, by the praetor’s edict for single.” This quote shows us that defaulting on a contract of depositum was more closely linked with delict and theft than a breach of contract. A breach of contract was less serious than an action worthy of a legis action (Sacramento in rem). This effectively negated the need for contract law in terms of a deposit.
The Depositarius had to keep the res and not use it as well as restore it on demand with any produce or accessories. The depositor had to compensate the depositarius for all expenses cased by the safekeeping of the object. Ulpian enumerates these rules, “When someone has chosen to rely on the trustworthiness of another and the deposit is not returned, he ought to be content with simple damages. However when he deposits through necessity ,the crime of perfidy increases and the public welfare demands retribution for the sake of protecting the common interest; for it is harmful to betray trust in cases of this kind.” Ulpian also provides us with an example, “If clothes given to the keeper of a bath for safekeeping are lost and if the keeper has received no fee for the safekeeping, I think that he is liable in an action on deposit and that he ought to be responsible only by his fraud; but where he has received a fee, he is liable on the action of hire.”
E. PIGNUS
A Pignus is described as “A contract creating a mortgage. Under the contract Res Corporalis is handed over by the pledger (Debtor) to the pledgee (Creditor) as security for a debt.” A Pignus was one of the methods available of creating real security. The pledgee had to give back the res once the debt had been repaid, restore the surplus to the debtor if the res was sold to extinguish an initial debt of less than what the res was sold for and not use the res, unless a separate contract allowed for this in the form of a Stipulatio. The pledger had to pay expenses incurred by the pledgee from the possession of the Res and pay damages if the res did not belong to the pledger, and the pledgee was thereby deprived of his security. Ulpian comments, “The pledgor’s action on pignus only arises when all the money is paid or satisfaction is given for it. By satisfaction we mean anything that suits the lender in the absence of actual payment…it is right to say quite generally that whenever the creditor chooses to give up the pledge he is understood to have been satisfied, so long as whatever he wants is assured to him, even though he be let down in relation to it.”
F. EMPTIO VENDITO
The Emptio Vendito is known as “A contract whereby a vendor agreed to sell, the purchaser agreed to buy, a res.” This is what is known today as a contract of sale. Paul elaborates on this contract, “Sale is a contract of the law of nations and so is concluded by simple agreement; it can thus be contracted by parties not present together, through messengers, or by correspondence.” The Emptio entails a basic sale involving the agreement or consent of two parties, ““It is obvious that in contracts of sale there must be consent; the sale is invalid if there is disagreement either as to the fact of sale or the price or any other matter.” For a valid sale to take place the object had to exist as well as be capable of ownership and there had to be a price paid for the object.
The vendor had to deliver the res and give vacant possession, guarantee against eviction. Neratius comments on this, “If I should be held responsible for a thing because of a sale and it is taken away from me by force, then although I should guard it, still it is better that there be no further consequence than my having to provide the buyer with the actions for recovering it; for safekeeping is of slight avail against force.” Florentinus adds, “A seller must warrant the absence of fraud on his part, and it is fraud not merely if one uses obscure language, but also if one is guilty of artful concealment.” The purchaser had to pay the agreed upon price and take delivery of the object at the agreed upon time.
G. LOCATIO CONDUCTIO
The Locatio is understood as “A contract whereby one person agrees to give another the use of a res or his services, in return for remuneration.” Gaius comments, “Lease and hire is close to sale and purchase, and it is formed by the same rules of law. Sale and purchase is contacted if the price agreed upon; similarly, lease and hire is considered to be contracted once the rent is agreed upon.” It took three forms. First is the Locatio Conductio Rei is when one party allows another party to make use of a res belonging to them personally. An example is provided by Paul, “A tenant farmer, if he is not permitted to enjoy, may rightly sue forthwith for the entire five-year period even if the farm’s owner should permit enjoyment during the remaining years; the owner is not discharged from his obligation because he will permit enjoyment of the farm in the second or third year.” The second is the Locatio Conductio Operarum. This is when one party allows another party the use of their own slaves’ services. Again Paul gives us an example, “A man who leases out his labour should receive wages for the entire term if he is not responsible for his labour not being rendered.” Finally there was the Locatio Conductio Operis in which one party supplies materials on which the other party expends his services, “If it is provided in a lease clause that the owner is to judge the work acceptable, this is construed to mean that what they had called for was the judgment of an upright man, and the same rule holds had they provided for judgment by some third party.
The Locator had to procure the conductor the use of the res as agreed upon, keep the res in repair and indemnify the conductor for necessary and useful expenditure. The conductor had to retain possession for only the time agreed upon and pay the agreed upon rent. “Both parties are respectively bound to render and accet the services agreed upon.”
H. SOCIETAS
A societas is understood as a basic partnership or “A contract whereby two or more persons combine to carry out a common object.” Essential elements of this agreement are that both parties must contribute, there must be an intention to form a partnership from both parties or as put by Ulpian, “A partnership can be formed on the terms that one partner is to suffer no part of any loss whereas profits are to be shared. Finally the object concerned must be a common and lawful one.
There are different kinds of partnerships. A Societas Universorum Bonorum would mean that no partner would have any private property. A Societas Universorum Quae Ex Quaestu Veniunt would be an absolute partnership in which partners are together in all business transactions. A Soceitas Alicujus Negotiationis would represent a limited partnership meaning that the partners would only be as such in certain business transactions. Societas Vectigalis would entail partnership in a farming framework and a Societas Unius Rei would be a partnership lasting only one transaction. Each of these partnerships would have their uses and advantages.
The common duty of any partner would be to contribute what he agreed upon towards the common cause, share in profits and losses as agreed upon and to indemnify the other partner pro rata against expenses and liabilities properly incurred for the benefit of the societas.
I. MANDATUM
A Mandatum is a basic mandate or “A contract whereby one person (Mandator) gives another (Mandatarius) a commission to do something without reward, and the other accepts the commission.” Juror Paul comments on how a Mandatum is to be recognized, “There is no mandate unless it is gratuitous. The reason is that it derives its origins from duty and friendship, and the fact is that payment for services rendered is incompatible with this duty. For if money is involved, the matter pertains to hire.”
There are several different kinds of Mandatum. The Mea gratia would be one in the interest of the mandatory alone, the Mea et Tua Gratia would be a mandate in the interest of both parties involved, the Mea et aliena gratia would be one in the interest of the mandatory and a third party, the Aliena gratia happened in the interest of the third party alone, the Tua et aliena gratia would be in the interest of that mandatarius as well as a third party and finally a Tua gratia is in the interest of the mandatarius alone.
In a Mandatum the mandatory would have to indemnify the mandatarius against any expense and liability incurred in execution of the mandate and also not revoke the mandate to the prejudice of the mandatarius. The mandatarius would have the duty of executing the mandate, not exceeding the mandate and making over any benefits to the mandatory unless otherwise stipulated. Paul comments on the use and identification of said agreement, “Nothing obtained as a result of the mandate ought to be left in the hands of the person who undertook the mandate.”
Finally it must be mentioned that a Mandatum must be made by consent, “The action on mandate is competent when the person who gave the mandate first has an interest; but if he ceases to have an interest, the action on mandate does not lie, what is more, the action only lies to the extent of his interest.”
VI. CONCLUSION
All the agreements above seem to share enough with the stipulation to actually be referred as such. What this means is that looking back we can call the stipulation not only the most general form of contract but also a contract which generalized and created some sort of contract law during the republican era despite what some authors might think. Each contract requires consent, a vital part of the stipulatio, as well as components specific to it. The components I understand to have been known not only by convention but also by specific statement. This means that what people were actually agreeing to would be a series of sometimes-complicated Stipulatio’s.
For example when someone entered into a contract of sale or Emptio Vendito they would actually be entering into a unilateral Stipulatio contract whereby one person would agree to hand over possession and ownership to another and the other party would agree to pay the vendor an agreed upon price. A default in this transaction must be understood as going against a specific stipulation enumerated in general due to the rules applying to a stipulation.
By doing this it is possible to say that the rules of the Stipulatio would have applied to these nominate contracts allowing us to call it the backbone of the Republic’s most early system on contracts.
From the above reasoning I believe to have proven that there did exist an indirect kind of general law of contracts. I have shown that the main idea or concept behind the various types of seemingly individualistic agreements did in fact come from one central idea, the Stipulatio. I have proven the existence of what can be seen and noted as a general law of contract during the republican era.
In Summary I put forward that the Stipulatio can be seen to have acted as an umbrella, covering all other agreements in such a way as to be deemed the general contract of the era.
Bibliography
Secondary Sources:
Andrew Borkowski and Paul du Plessis, Textbook on Roman Law 3 ed, (Oxford, 2005)
Collinet P, The evolution of contract as illustrating the general evolution of roman law. (1932) 488
David Nasmith, Outline of Roman History, (London, 1890) 19
David Pugsley, The Roman Law of Property and Obligations (London, 1972)
Elias. D, Roman Law in a Nutshell (London, 1945)
Encyclopedia Britannca
H. Roby, An Introduction to Justinian’s Digest (Cambridge, 1884)
J.A.C Thomas, A textbook of Roman Law (Amsterdam, 1926) 226
J. Muirhead, The Law of Obligations in the Latter Roman Republic, (Oxford, 1965)
R.Zimmerman The law of Obligations: Roman Foundations of the Civilian Tradition (JUTA 1990)
Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001
Watson Alan, ‘The evolution of law: The Roman system of Contracts’, Law and History review Vol. 2 no. 1 (1984) 6
Primary Sources:
Florentinus, Institutes, book 8
Gaius, Common Matters, book 2
Liv. III 34
Neratius, Parchments, book 3
Paul, Edict, book 28
Paul, Edict, book 32
Paul, Edict, book 34
Paul, Sabinus, book 11
Paul, Rules, sole book
Pomponius, Sabinus, book 26
Ulpian, Edict, book 30
Ulpian, Edict, book 31
Ulpian, Edict, book 33
Ulpian, Edict, book 48
Ulpian, Sabinus, book 28
Ulpian, Sabinus, book 30
Venuleius, Stipulations, book 1
--------------------------------------------
[ 1 ]. J.A.C Thomas, A textbook of Roman Law (Amsterdam, 1926) 226
[ 2 ]. David Pugsley, The Roman Law of Property and Obligations (London, 1972)
[ 3 ]. Contract. 2012. Encyclopædia Britannica Online. Retrieved 18 October, 2012, from http://www.britannica.com/EBchecked/topic/135270/contract
[ 4 ]. David Nasmith, Outline of Roman History, (London, 1890) 19
[ 5 ]. Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001 & Barry Nicholas An Introduction to Roman Law (Clarendon Press) 2
[ 6 ]. Ibid.
[ 7 ]. Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001
[ 8 ]. Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001
[ 9 ]. Ibid.
[ 10 ]. Ibid.
[ 11 ]. Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001 & Nicholas at p3
[ 12 ]. Authors such as Pugsley, Collinet and Thomas
[ 13 ]. Collinet P, The evolution of contract as illustrating the general evolution of roman law. (1932) 488
[ 14 ]. Although Collinet believes the first two to have meant the same thing.
[ 15 ]. Collinet, 488
[ 16 ]. Watson Alan, ‘The evolution of law: The Roman system of Contracts’, Law and History review Vol. 2 no. 1 (1984) 6
[ 17 ]. Collinet, 489
[ 18 ]. Watson, 2
[ 19 ]. Collinet 491
[ 20 ]. D.1.2.2.4
[ 21 ]. Liv. III 34
[ 22 ]. Borkowski and Du Plessis, 30 - 31
[ 23 ]. Borkowski and Du Plessis, 37
[ 24 ]. ibid.
[ 25 ]. ibid.
[ 26 ]. ibid, 38
[ 27 ]. H. Roby, An Introduction to Justinian’s Digest (Cambridge, 1884) 197
[ 28 ]. Ibid, 199
[ 29 ]. Ibid, 32
[ 30 ]. D.1.2.2.10
[ 31 ]. Borkowski and Du Plessis, 33
[ 32 ]. R.Zimmerman The law of Obligations: Roman Foundations of the Civilian Tradition (JUTA 1990) 546
[ 33 ]. Watson, 3
[ 34 ]. Watson, 4 & J. Muirhead, The Law of Obligations in the Latter Roman Republic, (Oxford, 1965)
[ 35 ]. G4.17a
[ 36 ]. Britannica
[ 37 ]. D.45.1.5.1 in Pomponius, Sabinus, book 26
[ 38 ]. Pugsley, 65
[ 39 ]. D.22.2.8 & D4.8.40 used by Watson on p2
[ 40 ]. D45.1.91.3 ibid on p3
[ 41 ]. D45.1.72 ibid on p6
[ 42 ]. D.36.3.1.15
[ 43 ]. D.45.1.137pr. from Venuleius, Stipulations, book 1
[ 44 ]. D.45.1.1.6 from Ulpian, Sabinus, book 48
[ 45 ]. Pugsley, 65 - 8
[ 46 ]. Watson, 3
[ 47 ]. Watson, 5
[ 48 ]. Zimmerman, 546
[ 49 ]. Muirhead, p204
[ 50 ]. Elias. D, Roman Law in a Nutshell (London, 1945) p41
[ 51 ]. Dig. 12.1.2,1
[ 52 ]. D.12.1.2.1 from Paul, Edict, book 28
[ 53 ]. Wille’s p948
[ 54 ]. Elias, p42 & R.W Lee, The Elements of Roman Law (London 1956) 291
[ 55 ]. D.12.6.5.10 from Ulpian, Edict, book 28
[ 56 ]. Elias, 42
[ 57 ]. Watson, 160 & Lee, 295
[ 58 ]. Collatio 10.7.11
[ 59 ]. D.16.3.1.4 from Ulpian, Edict, book 30
[ 60 ]. D.16.3.1.8 from Ulpian, Edict, book 30
[ 61 ]. Elias, 43
[ 62 ]. D.13.7.9.3 from Ulpian, Edict, book 28
[ 63 ]. Elias, 45
[ 64 ]. D.18.1.1.2 from Paul, Edict, book 33
[ 65 ]. D.18.1.9pr from Ulpian, Sabinus, book 28
[ 66 ]. D.19.1.31pr from Neratius, Parchments, book 3
[ 67 ]. D.18.1.43.2 from Florentinus, Institutes, book 8
[ 68 ]. Elias, 46
[ 69 ]. D.19.2.2pr from Gaius, Common Matters, book 2
[ 70 ]. D.19.2.24.4 from Paul, Edict, book 34
[ 71 ]. D.19.2.38pr from Paul, Rules, sole book
[ 72 ]. D.19.2.24 from Paul, Edict, book 34
[ 73 ]. Elias, 47
[ 74 ]. Elias, 47
[ 75 ]. D.17.2.29.1 from Ulpian, Sabinus, book 30
[ 76 ]. Elias, 48
[ 77 ]. D.17.1.1.4 from Paul, Edict, book 32
[ 78 ]. D.17.1.20pr from Paul, Sabinus, book 11
[ 79 ]. D.17.1.8.6 from Ulpian, Edict, book 31
Bibliography: Secondary Sources: Andrew Borkowski and Paul du Plessis, Textbook on Roman Law 3 ed, (Oxford, 2005) Collinet P, The evolution of contract as illustrating the general evolution of roman law. (1932) 488 David Nasmith, Outline of Roman History, (London, 1890) 19 David Pugsley, The Roman Law of Property and Obligations (London, 1972) Elias J.A.C Thomas, A textbook of Roman Law (Amsterdam, 1926) 226 J R.Zimmerman The law of Obligations: Roman Foundations of the Civilian Tradition (JUTA 1990) Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC Watson Alan, ‘The evolution of law: The Roman system of Contracts’, Law and History review Vol. 2 no. 1 (1984) 6 Primary Sources: [ 1 ]. J.A.C Thomas, A textbook of Roman Law (Amsterdam, 1926) 226 [ 2 ] [ 3 ]. Contract. 2012. Encyclopædia Britannica Online. Retrieved 18 October, 2012, from http://www.britannica.com/EBchecked/topic/135270/contract [ 4 ] [ 5 ]. Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001 & Barry Nicholas An Introduction to Roman Law (Clarendon Press) 2 [ 6 ] [ 7 ]. Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001 [ 8 ] [ 11 ]. Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001 & Nicholas at p3 [ 12 ] [ 13 ]. Collinet P, The evolution of contract as illustrating the general evolution of roman law. (1932) 488 [ 14 ] [ 32 ]. R.Zimmerman The law of Obligations: Roman Foundations of the Civilian Tradition (JUTA 1990) 546 [ 33 ] [ 34 ]. Watson, 4 & J. Muirhead, The Law of Obligations in the Latter Roman Republic, (Oxford, 1965) [ 35 ]
HBBDAV001
“The proposed generality of contract law during the Roman Republican era”
19 October 2012
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The proposed generality of Roman contract law during the Republican era:
The Roman republic is known for many things. It is especially known for it developments affecting modern day law. These developments are said to be the very essence of modern day law. It is important for us to know how and when these developments took place in order to understand how our society developed into what it is today. I intend to look specifically at the law and how it came to be and developed into what we know it as today. More specifically I intend to make a detailed investigation into contract law. Contract law has a detailed history but its interpretation differs, it appears, from source to source, modern and ancient. There exists a debate, to which I will later refer, involving the generality of contract law that has existed between authors for close to a century. It is this debate I wish to research and report on and hopefully come to a definitive conclusion.
Various theories exist showing that contract law during Rome’s republican era was in fact not general at all but was instead a compilation of laws and regulations applying to specifically different circumstances. These are the views shared by various scholars throughout modern history. “It is often said that the Romans never developed a system of contract but only of individual contracts.” “The classical law of contract was a complicated and heterogeneous collection of legal rules which seems to have developed piecemeal to satisfy the needs of commerce.” The arguments of the above authors are those I wish to challenge based on knowledge from other authors as well as what we know today as a collective society.
It serves us well to look at a definition of a contract as understood by a trusted contemporary source. The Encyclopedia Britannica frames it as follows, “A promise enforceable by law. The promise may be to do something or to refrain from doing something.” It goes on to say, “The law of contracts considers such questions as whether a contract exists, what the meaning of it is, whether the contract has been broken, and what compensations are due to the injured party.”
In order to understand and evaluate the statements made by Thomas and Pugsley we must dissect various outlooks and sources concerning the Republican concept of contract law in its historical sense meaning that a detailed assessment is required of the agreements that existed during the republic. I will start by looking at the Republic as an historic period, analyzing its key moments and turning points that could have affected the development of contract law. Next I will write about the history and development of contract law in order to get a more detailed and focused idea of what we will actually be dealing with. Following this it serves us well to outline the tension which is the focus of this paper and a result of the preceding introductions. After discussing this we must look at the sources I will be using in order to get a general idea about the reliability and relevancy of the information I will be using.
After this I will introduce further details and begin discussing individual forms of contract making sure to point out the parts of them that add to my argument. This discussion will represent the bulk of my argument. Finally after weighing up all the evidence I will clarify my findings and present a conclusion based on all the facts and evidences I have discussed.
The aim of this paper is to prove to the reader that during the Republican era of Rome there did in fact exist a type of general law of contract, if not directly then indirectly. I will attempt to prove this by showing that, although there might have been different rules for different situations, the main idea or concept behind these rules and classifications came from one central idea which lent its identity to these other forms of contracts, therefore making it appear as though they were completely separate when in fact they were actually part of a system.
I. HISTORY OF THE REPUBLIC:
From this brief history of the Republic one will notice that Rome was never in a constant enough state for any law to develop in a manner not considered piecemeal. Rome’s population was constantly changing which brings a myriad of social factors that could have affected especially the private law sphere. Rome’s government and its leadership structure never stayed the same long enough during the republic for the law to develop around such a system. It is important for us to know this if we want to understand exactly where and how contract law developed.
The Republican era is believed to have lasted from 509 BC until 31BC. It encompasses an era lasting from the time the Tarquins were expelled from Rome, thereby ending the regal era, until the famous battle of Actium that took place around 31BC.
Upon the expulsion of the Tarquins it was decided that Rome would have no more kings and that all the royal powers previously vested in a single figure would now be given to two democratically elected people called Consuls. These consuls were believed to have been democratically elected by the senate of Rome. As for the King’s pontifical duties they were to be assigned to a third position henceforth known as the Rex Sacrificulus or Rex Sacrorum. During this time of change the Roman senate was restored and given back its power. The senate consisted of Patrician as well as Plebeian members who were representatives. This period also saw a series of documents being drawn up in honor of the developments seen thus far. These documents outlined the legal rights of Roman citizens (excluding women, slaves and resident aliens).
The Republic saw the introduction of three major political components. The first was the introduction of two consuls which formed the executive branch of the government. They shared supreme military authority. The consuls served a one year term after which they would retire into the senate for life. Each of them had a veto right against the other which in effect gave supreme Roman power equally to two people changing every year. The second was the introduction of the Roman senate, an advisory body with legislative duties and responsibilities. Thirdly there was the commission of the assemblies; one for the centuries and another for the tribes which included every citizen. While the assembly of the tribes included everyone, the century assembly was reserved for those who could afford to fight in Rome’s armies.
The tribal assembly was responsible for rejecting or approving laws and attempts at war while the centuries were directly responsible for the election of the consuls.
It is said that the republic was classified by its checks and balances put in place so that a regal system would not happen again. The idea was that no one person could seize ultimate power. This did not mean that anyone could be a consul though. It was said that unless you had an ancestor who was a consul you could not yourself become one.
The theoretical exclusion of plebeians from ruling Rome and not being given enough power led to a split in Roman citizens. The patricians represented less that one percent of Rome’s population and were legally and socially superior to the majority of citizens. They had earned their position through wealth and land ownership over many years and had a monopoly of social, political and economic power even though the Plebeians heavily outnumbered them. The Plebeians on the other hand consisted of peasants and people who, although had wealth, could not become Patricians due to their ancestral position. The competition between these two group is known as the ‘Struggle of the Orders’. The struggle arose because Plebeians could no longer, by law, be in the senate (which had most of the power). They were allowed to vote but their votes were often overpowered by a skewed voting proportionality system used and supported by the senate. The result was that the Plebeians decided to leave Rome as a state and start their own state. This led to a near collapse of the Roman economy and the Patricians therefore asking the Plebeians to return to Rome. The Plebeians were given the right to elect their own tribunals and were given an absolute veto power over the actions of the state.
This political upheaval resulted in the creation of a document known as the XII Tables in 451 BC. It was drafted as a response to the desire to know the law by the Plebeians as well as an accommodation provided for their return. The document effectively codified the laws concerning specific matters, crimes and the relations among other family members. This is considered to be an important event in terms of the development of the law, and more specifically the law of contract, because it recognizes only certain types of contracts specifically.
In 396 BC Rome destroyed long time enemy, Veii. This represented Rome’s expansion over the Mediterranean world. After this Rome conquered many other cities effectively making them partners in their quest for domination. This is a clear example of Rome making use of the ‘compromise and assimilate’ doctrine. This idea led to the building up and strengthening of the Roman republic. During this time Rome was continually at war beginning with the First Punic War in 264 BC against Sicily then the Second Punic War over Sagantum in 281 BC then the Third Punic War against Carthage in 149BC then the Macedonian war in Asia Minor. These wars eventually led Rome to be the victor over Africa and Asia Minor.
Rome had developed an efficient tax system by now and was effectively charging it’s new ‘Provinces for the privilege of being part of the Roman world. The system did inevitably become corrupt because Roman leaders were not concerned with how much profit tax collectors made. This new flow of money could be seen to have increased the demand for more complicated contracts and maybe even a system of contract.
From 133 BC Rome experienced a revolution in the form of many civil wars due to a change of loyalties of soldiers based in far away provinces. By now Patricians had also begun buying the votes of peasants who desperately needed the money due to heavy tax increases.
The above problems led to a threefold problem for Rome. The senatorial class was becoming more powerful and numerous. The urban masses were no longer fulfilling their role and finally the army was beginning to disagree with the senatorial class. Eventually Rome became divided into two main factions. The Optimates, whose interests law only with wealth. They were conservative and scarce but still managed to maintain power over Rome. The Populares are described as “Champions of the depressed portion of the citizenry.” They wanted a redistribution of land amongst all those who deserved it, not only the wealthy class. This class especially highlighted peasants who were moving to the city in their masses in order to sell their votes.
The clash of these two groups led to a civil war leading to the death of prominent figures. These Populares leaders were replaced with more leaders. In particular Gaius Gracchus who’s wish it was to transform Rome into an actual democracy once more. He had gained the support of the public assembly. The senate did not approve of him though and so declared martial law in order to have him killed.
Later, Germanic tribes from North of the Danube River invaded the Republic. This attack exposed the true weakness of the senatorial system. Rome sent poorly organized armies who were unwilling to fight and led by corrupt leaders. The Germanic tribes were eventually defeated by a private army led by Gaius Marius who had gained his power through the abolishing of the laws which stated that a soldier had to one land. The result was that his army consisted of poor men who wanted to fight. His popularity led to his election as consul several times.
Gaius was eventually overthrown by Sulla in 88 BC. When Sulla left to conquer Mithridates Rome became once again subject to rival factions battling for power. When he returned he killed hundreds of his opponents and named himself dictator for life. He refashioned Rome and introduced measures which afforded the army generals and tribunes less power than before. He made them unable to pass a law without the senate’s approval. He made the office of tribune a lifetime one which meant that men with political ambitions would no longer be attracted to it and finally he limited the term of governor to one year as to prevent any one man from becoming a hero to his men. Basically Sulla was trying to prevent another Sulla from happening.
We skip ahead in time now to where the second triumvirate has achieved power through the death of Ceasar. This eventually leads to the famous conflict between Anthony and Octavius culminating in the battle of Actium which Octavian wins and is henceforth known as Augustus Ceasar. Once he had cemented his power we see the beginning of the empire and the end of the Republic.
II. HISTORY AND DEVELOPMENT OF CONTRACT LAW
When the Republic began it is believed by some authors that there was no contract law as such. There existed no idea or concept of a body of rules governing transactions which gave rise to obligations. This opinion entails instead the existence of individual transactions that could in themselves lead to separate but binding obligations. They were an oath (Sponsio), a verbal agreement (stipulation) and a loan for consumption (Mutuum).
During this period it was not certain that an agreement itself between a creditor and a debtor could lead to an obligation. Agreement was instead believed to have only been seen as evidence of some sort of transaction which would itself lead to obligations. The binding element was noted as the factual actions taken by each party otherwise referred to as “the external facts giving evidence of their [The parties’] intention.” It was as if the actions or words said by each party were somehow magic and bound them no matter what their state of mind was. The justification for this way of thinking was that no one could truly tell what was actually happening inside the thought of another person which made it unreasonable to base the validity of an agreement on what someone was supposedly thinking. This theory “harmonizes with that materialism which is the primitive general characteristic of ancient Roman law.”
A contract in this sense was recognized as an “agreement between two or more persons whose main legal consequence is an obligation with an effect personal rather than real.” Watson says this but does also admit that this is a rather crude definition but serves its purpose of explaining how a contract was perceived in a way in which is more understandable in modern times.
By 154 BC a gradual development in the way in which a contract was seen and treated had happened. I will be providing evidence of and for this change later. The development is confirmed to have had happened between the second and third Punic wars due to the influx of Roman citizens. The development is seen here as an economic adaptation of a certain type of agreement. By this date Rome’s population had expanded due to Italian farmers being driven from their farms for fear of becoming slaves and fleeing to Rome. Their land had been conquered by the Romans in the Punic wars. This development is seen as a result of necessity in order to compensate for the amounts of people Rome was now having to accommodate. The fact that more people were becoming part of the urban city brought with it the obvious ramification of the necessity for a better suited economic system and one of the most effective ways of doing this would be to improve the system in such a way as to deal with people’s private interactions on a more comprehensive level. This is why we see the introduction of these more complex agreements. Up to this point Collinet still insists that there is no formal recognition of a general law of contract. He sees this development as a mere increase in the specificity of transactions recognized as having correlative obligations. The word ‘contractus’ was not yet recognized in its general sense and was only in fact discovered in a 6th Century Greek paraphrase of Justinian’s institutes.
The development saw the recognition of two types of obligation creating transactions: Perfectly synallagmatic and Imperfectly synallagmatic transactions. What this means is that some contracts bound each party involved to give and receive something. The evidence for this lies in the discussion about the specific contracts I will discuss later. In the perfectly bilateral agreement we see the emergence of a contract of sale (Emptio-vendito), letting/hiring (Locatio Conductio) and a partnership (Societas). The the imperfectly Synallagmatic agreements we see the recognition of a suspensive pledge (Fiducia), a loan for use (Commodatum), a deposit for safekeeping (Depositum), a pledge (Pignus) and an unrewarded commission (Mandatum).
At this point any outsider looking in would note the emergence of a crude general law of contract by noticing the emergence of certain rules applying to more than one situation. We would also have to note that the Romans at the time would not hold such a belief but would still only recognize nominate transactions and their formalities meaning that they would acknowledge only specific agreements in an individual manner. The advantages of the belief in this ‘nominate transactions only’ system is that certain situations would become self-explanatory in terms of the appropriate remedies and relief because of the exactness and precision of said remedies. Disadvantages would include the fact that some situations would become a mystery with regards to how they were dealt with. Here is where we do notice some inconsistencies with the overall development of Roman Law.
III. TENSION
Some believe that there did exist a general law of Roman contract during the Republic (such as Watson) while others insist that it was not general until many years after the Republic had ended (Collinet and Thomas).
The argument against generality (for specificity) relies on the fact that the existence of individual nominate contracts must prove beyond a reasonable doubt that there was no general law of contract during the republic. If there was in fact a general law then there would have been no need for such separate actions for different transactions. Each type of transaction has a well connected action which allows for its separate treatment therefore denying the existence of any kind of general law for this type of transaction during the Republic.
The argument for generality relies on an agreement known as the Stipulatio (which we will discuss later). This argument says that all the individual nominate contracts which emerge seemingly on an independent basis are actually all derogations or things that are a direct manipulation of the Stipulatio. The argument goes further to say that the general rules for the Stipulatio applied in some shape or form to every single type of transaction that we would now consider to be of a contractual nature. If this were true, then it would render these nominate transactions as falling under the Stipulatio. This would then give all these contracts the ability to be dealt with in a general manner even if they were not recognized as such during Rome’s Republican era. This idea would make all transactions which led to obligations during the republic fall under what would now be seen and recognized as a general law of contract.
The above tension is the one I wish to address in the manner described earlier in this paper.
IV. SOURCES
There are number of sources that will prove that the Roman republic did have a system of contract whether they knew it or not. The sources may have been written during or after the republic but their relevancy I will be discussing and commenting on before I use them.
The first source is the XII Tables, which I have mentioned before as a prominent result of Rome’s turbulent transition to a democracy. The tables were drawn up or captured by a group of ten men called the decemviri in 451 BC. “It was decided that there be appointed, on the authority of the people, a commission of ten men by whom were to be studied the laws of the Greek city states and by whom their own city was to be endowed with laws.” The tables were written due to the persistence of the Plebeians of Rome because they felt that their rights were being infringed without codified law. They are the result of a long struggle of the two main factions of Rome as mentioned earlier. Until the XII Tables, there had not yet existed an actual piece of codified law which put the Patricians in a superior ruling position.
The laws were written on ivory (or bronze) tablets and were made available on a rostrum for all to see which made them public and available for all to see. There were twelve tables, two of which were later added in order to correct or fine-tune the previous ten. These tables are recognized as Rome’s first piece of codified law and the originals were only destroyed in 390 BC when the Gauls sacked Rome.
The XII tables are not seen or recognized by scholars as a very comprehensive source because they are somewhat primitive and incomplete. They only briefly outline the main laws of the land and even then not in much detail. Another factor contributing to this unreliability is the fact that the tables exist only in fragments or in secondary references by other authors making it an unreliable source from which we can draw little to no relevant information on the generality of contract law during the republic. Adding further to the detriment of this source is the fact that it does not specifically mention agreements. Instead it focuses on the procedure of acquiring an owed debt; including how to initiate proceedings and the enforcement of judges. As a source it tends to focus on procedural law as is typical of codified laws from this era.
The next source category I wish to examine are the commentaries and institutes of various jurists. During the republic jurists were responsible for giving advice to certain kinds of people. The advised judges who were normally experienced but sometimes lacked the appropriate level of judicial knowledge in order to make an informed decision. They advised praetors who were responsible for drafting edicts and often made use of this advice in doing so. They advised Magistrates and Provincial Governors and many other high offices. Although their advice was widely sought it was not binding and did not create any kind of precedent. Their advice forms a well known source of law which “helped to elucidate the law, to give it shape, and to fill in the gaps.” Jurists performed other functions as well such as: drafting wills, coaching people involved in auditory ceremonies, helping legal litigants with their presentations for court and some even taught professionally. The jurists are also responsible for the writing of many pieces of text including commentaries on the XII tables, statutes and monographs on specialized pieces of the law. Borkowski and Du Plessis summarize it well by saying that “Juristic literature converted Roman law into science.”
Some examples of famous reliable jurists include Sextus Aelius (A Consul in 198 BC), Quintus Mucius Scaevola (Tribune in 106 BC), Aquilius Gallus (Praetor in 66 BC) and Servius Sulpicius Rufus (Praetor in 65 BC).
Juristic commentaries are known to be reliable because of their detail and historical accuracy when compared with other contemporary sources. Their influences came from many different areas such as politics, existing laws and from basic living amongst the Roman people. From this notion we must believe that they are the best representation of what happened during the time the report on in their commentaries or monographs. This being said it appears as though they were responsible for the rigid development of Roman law. It is clear to see that their texts will be valuable because of their detail and perceived historical accuracy.
An example of one such author (and one I will make good use of) is Paul. Born Julius Paulus he was made captain of the guard by Alexander Severus. He was known as a prolific writer who added 2081 extracts to the Corpus Iuris Civils being outdone only by Ulpian in this regard. His writings are seen as a reliable source on the republic and in particular, contract law. Examples of these contributions will follow on when I discuss the particular contracts. His monographs are seen as reliable to many scholars.
Another example I will be making good use of is that of Ulpian. Born Domitis Ulpianus he was known as a contemporary to Paul. Ulpian served in public life and was promoted by many famous rulers such as Alexander.
Other jurists include Pomponius, Venalarius, Neratius and Florentinus.
The next source I believe to be equally important as the one I mentioned above. They are the edicts of magistrates. During the republic high-ranking magistrates had the right to issue edicts or “Legally binding directives within their appropriate sphere of jurisdiction.” During the late republic these edicts came together to form what is known as the ius honororum or “Law laid down by the magistrates.” This was seen as a supplement to the main body of law at the time. “The Ius Honorum infused Roman law with new vigor and a fresh direction, transforming an introverted, parochial body of law into an outward-looking, cosmopolitan system.” These edicts were published on wooden board and displayed in the forum for the same reason the XII Tables were displayed there.
V. NOMINATE CONTRACTS
As previously mentioned the Roman Republic had in a set of nominate agreements which could, if performed correctly, lead to binding obligations. I will now enumerate these beginning with the one I think is the cause for my belief in an abstract system of contract during the Roman republic, the Stipulatio. I will discuss each on in detail before concluding with a statement on their generality which I believe will encompass them all as well as their individual developments.
A. STIPULATIO
The Stipulatio is believed to be the key to providing the generality of Roman contact law during the Republican era. For example, Zimmerman believes it to be “the backbone of the contractual scheme of Roman Law.” A different well-known author, Alan Watson, believes the Stipulatio to have been the method used to form all contracts. He refers to the Stipulatio as an “anachronistically general theory of contract.”
Although the origins of the Stipulatio are obscure it is believed to have been a well-developed concept with origins dating before the codification of the XII Tables. Gaius tell us that it was enforced during the republic by use of judicis postulatio.
The Stipulatio is described as a “form of contract based upon a simple question and answer.” It is what is known as a formal stricti iuris unilateral contract and can be described further as “a verbal expression in which the man who is asked replies that he will give or do what he has been asked.”
The actual Stipulatio ceremony was a short and simple one consisting of a question by the promisee and a reply by the promisor accepting the responsibility. The promisee would begin by saying “Dari Spondes?” or “Do you engage?” and the promisor would reply “Spondes” “I engage”. From this one can clearly notice that the Stipulatio was formulaic. The promise would ask the promisor to fulfill a certain verb action and the promisor would respond paying careful attention to the word he used in his reply. As previously mentioned the words used in the Stipulatio were very powerful which meant that merits would not be considered when a case was brought fourth for adjudication. Factors such as fraudulent misrepresentation, error in substance or even contracting by extortion were not taken into account as long as the words were correctly said and the ceremony was correctly initiated.
There were various rules that applied generally to the Stipulatio. It is important to enumerate and discuss these in order to compare them with other nominate contracts. The first one was known as the ‘Pecunia Traiclicia’ and is described as follows, “If the promisor binds himself to pay a penalty in the event of non-performance, he is not bound to pay the penalty if his non-performance is due to the stipulator.” The second one was the ‘Culpa Intervenit Debitoris’, which meant, “If the promisor delays performance and performance becomes impossible he is not released from his obligation.” The third and final one was the ‘Pro Portione Sua’ which is described as follows, “If a promisor dies leaving several heirs and one of them commits a breach of the stipulation for which a fixed monetary penalty was established, then, if the stipulation admits for division, only the person in breach is liable and that only for his share; if the stipulation does not admit of division all are liable for their respective shares.”
The Stipulatio effectively represented the Republican belief of a separation between an actual agreement and its ability to create obligations by itself. The Stipulation did not in itself require actual intention, but instead the words mentioned were seen as magic and binding. Even though this may have been true, the words used were paid great attention to because they were supposed to show intention and an agreeing mindset. “The acts of stipulator and promisor must be continuous, though a moment or two may naturally intervene. The reply must be made when the stipulator is at hand. If, after the question, something else is begun, the proceeding is invalid, even if the reply is given on the same day.”
It is clear that there was a potential power of versatility possessed by the Stipulatio. In theory it can be said that it could be used for virtually any purpose. The formula could be used to bind anyone to anything if the correct words were used. Its existence is believed to be the key to proving the existence of an abstract general rule of contract during the Republican era. According to Ulpian it even transcended language barriers; “It makes no difference whether the reply is made in the same language or in another. For instance, if a man asks in Latin but receives a reply in Greek, as long as the reply is consistent, the obligation is settled…The writings of Sabinus allow it to be true that all tongues can produce a verbal obligation, provided that both parties understand each other’s language, either of their own accord or by means of a truthful interpreter.”
The development of the Stipulatio over time, due to factors mentioned previously in the ‘Contract History’ section, eventually led to any restriction placed on it to fall away. This made it possible to make any promise legally enforceable by making use of a designated ceremony. Author, Pugsley disagrees with this point stating that the Stipulatio was not developed enough to accommodate all kinds of agreements during the republic and that “such a solution was not originally available…The Stipulatio was not the simple and general solution to all contractual problems to which it later became.” He goes on to say that the developments were actually a response to economic events, “the attempt is sometimes made to explain in economic terms why each contract arose when it did.” Watson’s response to this is that, “each of the contractual agreements, however, whether it be for a loan for consumption or sale, could be cast in the form of one or more stipulations.” Zimmerman agrees by describing the Stipulatio as being universally applicable “provided only the simple, oral formality was complied with, every lawful agreement could thus be made enforceable.” He also describes it as foundational to modern day contract law.
The above argument is enforced by Muirhead’s recognition of the Stipulatio as one of “the few events in the history of private law were followed by more far-reaching consequences that the introduction of the stipulation.” He believed that the Stipulatio played a large role in developing the roman concept of a contract and that in its versatility its purpose was simply to note the undertaking by one man in favor of another. Without it, he says, every agreement would have had to rely on simple good faith which would not make for a very reliable system and would invariably lead to corruption and failure.
I will now enumerate and discuss the other nominate contracts making sure I show how they can be represented as a Stipulatio.
B. MUTUUM
A Mutuum was known as a “loan of money or other Res Fungibles for consumption.” Res Fungibles are things that can be weighed, numbered and measured or in other words “This kind of lending happens in relation to those things which are dealt in by weight, number or measured.” A Mutuum is “a contract by which the owner of a personal chattel, called the lender, delivers it to another, known as the borrower, by which it is agreed that the borrower shall consume the chattel loaned, and return at the time agreed upon, another chattel of the same quality, kind and number, to the lender, either gratuitously or for a consideration.” It is a unilateral contract in which the borrower was responsible for restoring the value of that which he had borrowed in the same currency which he had borrowed it.
C. COMMODATUM
A Commodatum was known as a “Loan of a res for a specific purpose.” The borrower would have to return the res by a specific date, return it in a good condition and not use it in any other way other than stipulated in the contract. The lender had to allow the borrowed the use of the res as agreed, compensate the borrower for all extraordinary expenses caused by possession of the res and compensate the borrower for any extraordinary damage caused by the res owing to a defect. These rules are explained by Ulpian, “There are clearly cases in which the borrower will be liable only for willful harm, for example, when that is what is agreed, or where the loan is only in the interest of the lender, as by a man to his fiancée or wife to enable her to dress with greater dignity for her presentation to him or by a praetor putting on games to actors or indeed by someone only too glad to lend to the praetor.”
D. DEPOSITUM
A Depositum is described as “A contract whereby one person (Depositor) gives to another (Depositarius) a res to be kept gratuitously and returned on demand.” This agreement has a complicated history because of the existence of a number of sources claiming different actions for defaulting on a contract of Depositum. Jurist Paul gives us the following account, “On account of deposit an action is given by the XII tables for double, by the praetor’s edict for single.” This quote shows us that defaulting on a contract of depositum was more closely linked with delict and theft than a breach of contract. A breach of contract was less serious than an action worthy of a legis action (Sacramento in rem). This effectively negated the need for contract law in terms of a deposit.
The Depositarius had to keep the res and not use it as well as restore it on demand with any produce or accessories. The depositor had to compensate the depositarius for all expenses cased by the safekeeping of the object. Ulpian enumerates these rules, “When someone has chosen to rely on the trustworthiness of another and the deposit is not returned, he ought to be content with simple damages. However when he deposits through necessity ,the crime of perfidy increases and the public welfare demands retribution for the sake of protecting the common interest; for it is harmful to betray trust in cases of this kind.” Ulpian also provides us with an example, “If clothes given to the keeper of a bath for safekeeping are lost and if the keeper has received no fee for the safekeeping, I think that he is liable in an action on deposit and that he ought to be responsible only by his fraud; but where he has received a fee, he is liable on the action of hire.”
E. PIGNUS
A Pignus is described as “A contract creating a mortgage. Under the contract Res Corporalis is handed over by the pledger (Debtor) to the pledgee (Creditor) as security for a debt.” A Pignus was one of the methods available of creating real security. The pledgee had to give back the res once the debt had been repaid, restore the surplus to the debtor if the res was sold to extinguish an initial debt of less than what the res was sold for and not use the res, unless a separate contract allowed for this in the form of a Stipulatio. The pledger had to pay expenses incurred by the pledgee from the possession of the Res and pay damages if the res did not belong to the pledger, and the pledgee was thereby deprived of his security. Ulpian comments, “The pledgor’s action on pignus only arises when all the money is paid or satisfaction is given for it. By satisfaction we mean anything that suits the lender in the absence of actual payment…it is right to say quite generally that whenever the creditor chooses to give up the pledge he is understood to have been satisfied, so long as whatever he wants is assured to him, even though he be let down in relation to it.”
F. EMPTIO VENDITO
The Emptio Vendito is known as “A contract whereby a vendor agreed to sell, the purchaser agreed to buy, a res.” This is what is known today as a contract of sale. Paul elaborates on this contract, “Sale is a contract of the law of nations and so is concluded by simple agreement; it can thus be contracted by parties not present together, through messengers, or by correspondence.” The Emptio entails a basic sale involving the agreement or consent of two parties, ““It is obvious that in contracts of sale there must be consent; the sale is invalid if there is disagreement either as to the fact of sale or the price or any other matter.” For a valid sale to take place the object had to exist as well as be capable of ownership and there had to be a price paid for the object.
The vendor had to deliver the res and give vacant possession, guarantee against eviction. Neratius comments on this, “If I should be held responsible for a thing because of a sale and it is taken away from me by force, then although I should guard it, still it is better that there be no further consequence than my having to provide the buyer with the actions for recovering it; for safekeeping is of slight avail against force.” Florentinus adds, “A seller must warrant the absence of fraud on his part, and it is fraud not merely if one uses obscure language, but also if one is guilty of artful concealment.” The purchaser had to pay the agreed upon price and take delivery of the object at the agreed upon time.
G. LOCATIO CONDUCTIO
The Locatio is understood as “A contract whereby one person agrees to give another the use of a res or his services, in return for remuneration.” Gaius comments, “Lease and hire is close to sale and purchase, and it is formed by the same rules of law. Sale and purchase is contacted if the price agreed upon; similarly, lease and hire is considered to be contracted once the rent is agreed upon.” It took three forms. First is the Locatio Conductio Rei is when one party allows another party to make use of a res belonging to them personally. An example is provided by Paul, “A tenant farmer, if he is not permitted to enjoy, may rightly sue forthwith for the entire five-year period even if the farm’s owner should permit enjoyment during the remaining years; the owner is not discharged from his obligation because he will permit enjoyment of the farm in the second or third year.” The second is the Locatio Conductio Operarum. This is when one party allows another party the use of their own slaves’ services. Again Paul gives us an example, “A man who leases out his labour should receive wages for the entire term if he is not responsible for his labour not being rendered.” Finally there was the Locatio Conductio Operis in which one party supplies materials on which the other party expends his services, “If it is provided in a lease clause that the owner is to judge the work acceptable, this is construed to mean that what they had called for was the judgment of an upright man, and the same rule holds had they provided for judgment by some third party.
The Locator had to procure the conductor the use of the res as agreed upon, keep the res in repair and indemnify the conductor for necessary and useful expenditure. The conductor had to retain possession for only the time agreed upon and pay the agreed upon rent. “Both parties are respectively bound to render and accet the services agreed upon.”
H. SOCIETAS
A societas is understood as a basic partnership or “A contract whereby two or more persons combine to carry out a common object.” Essential elements of this agreement are that both parties must contribute, there must be an intention to form a partnership from both parties or as put by Ulpian, “A partnership can be formed on the terms that one partner is to suffer no part of any loss whereas profits are to be shared. Finally the object concerned must be a common and lawful one.
There are different kinds of partnerships. A Societas Universorum Bonorum would mean that no partner would have any private property. A Societas Universorum Quae Ex Quaestu Veniunt would be an absolute partnership in which partners are together in all business transactions. A Soceitas Alicujus Negotiationis would represent a limited partnership meaning that the partners would only be as such in certain business transactions. Societas Vectigalis would entail partnership in a farming framework and a Societas Unius Rei would be a partnership lasting only one transaction. Each of these partnerships would have their uses and advantages.
The common duty of any partner would be to contribute what he agreed upon towards the common cause, share in profits and losses as agreed upon and to indemnify the other partner pro rata against expenses and liabilities properly incurred for the benefit of the societas.
I. MANDATUM
A Mandatum is a basic mandate or “A contract whereby one person (Mandator) gives another (Mandatarius) a commission to do something without reward, and the other accepts the commission.” Juror Paul comments on how a Mandatum is to be recognized, “There is no mandate unless it is gratuitous. The reason is that it derives its origins from duty and friendship, and the fact is that payment for services rendered is incompatible with this duty. For if money is involved, the matter pertains to hire.”
There are several different kinds of Mandatum. The Mea gratia would be one in the interest of the mandatory alone, the Mea et Tua Gratia would be a mandate in the interest of both parties involved, the Mea et aliena gratia would be one in the interest of the mandatory and a third party, the Aliena gratia happened in the interest of the third party alone, the Tua et aliena gratia would be in the interest of that mandatarius as well as a third party and finally a Tua gratia is in the interest of the mandatarius alone.
In a Mandatum the mandatory would have to indemnify the mandatarius against any expense and liability incurred in execution of the mandate and also not revoke the mandate to the prejudice of the mandatarius. The mandatarius would have the duty of executing the mandate, not exceeding the mandate and making over any benefits to the mandatory unless otherwise stipulated. Paul comments on the use and identification of said agreement, “Nothing obtained as a result of the mandate ought to be left in the hands of the person who undertook the mandate.”
Finally it must be mentioned that a Mandatum must be made by consent, “The action on mandate is competent when the person who gave the mandate first has an interest; but if he ceases to have an interest, the action on mandate does not lie, what is more, the action only lies to the extent of his interest.”
VI. CONCLUSION
All the agreements above seem to share enough with the stipulation to actually be referred as such. What this means is that looking back we can call the stipulation not only the most general form of contract but also a contract which generalized and created some sort of contract law during the republican era despite what some authors might think. Each contract requires consent, a vital part of the stipulatio, as well as components specific to it. The components I understand to have been known not only by convention but also by specific statement. This means that what people were actually agreeing to would be a series of sometimes-complicated Stipulatio’s.
For example when someone entered into a contract of sale or Emptio Vendito they would actually be entering into a unilateral Stipulatio contract whereby one person would agree to hand over possession and ownership to another and the other party would agree to pay the vendor an agreed upon price. A default in this transaction must be understood as going against a specific stipulation enumerated in general due to the rules applying to a stipulation.
By doing this it is possible to say that the rules of the Stipulatio would have applied to these nominate contracts allowing us to call it the backbone of the Republic’s most early system on contracts.
From the above reasoning I believe to have proven that there did exist an indirect kind of general law of contracts. I have shown that the main idea or concept behind the various types of seemingly individualistic agreements did in fact come from one central idea, the Stipulatio. I have proven the existence of what can be seen and noted as a general law of contract during the republican era.
In Summary I put forward that the Stipulatio can be seen to have acted as an umbrella, covering all other agreements in such a way as to be deemed the general contract of the era.
Bibliography
Secondary Sources:
Andrew Borkowski and Paul du Plessis, Textbook on Roman Law 3 ed, (Oxford, 2005)
Collinet P, The evolution of contract as illustrating the general evolution of roman law. (1932) 488
David Nasmith, Outline of Roman History, (London, 1890) 19
David Pugsley, The Roman Law of Property and Obligations (London, 1972)
Elias. D, Roman Law in a Nutshell (London, 1945)
Encyclopedia Britannca
H. Roby, An Introduction to Justinian’s Digest (Cambridge, 1884)
J.A.C Thomas, A textbook of Roman Law (Amsterdam, 1926) 226
J. Muirhead, The Law of Obligations in the Latter Roman Republic, (Oxford, 1965)
R.Zimmerman The law of Obligations: Roman Foundations of the Civilian Tradition (JUTA 1990)
Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001
Watson Alan, ‘The evolution of law: The Roman system of Contracts’, Law and History review Vol. 2 no. 1 (1984) 6
Primary Sources:
Florentinus, Institutes, book 8
Gaius, Common Matters, book 2
Liv. III 34
Neratius, Parchments, book 3
Paul, Edict, book 28
Paul, Edict, book 32
Paul, Edict, book 34
Paul, Sabinus, book 11
Paul, Rules, sole book
Pomponius, Sabinus, book 26
Ulpian, Edict, book 30
Ulpian, Edict, book 31
Ulpian, Edict, book 33
Ulpian, Edict, book 48
Ulpian, Sabinus, book 28
Ulpian, Sabinus, book 30
Venuleius, Stipulations, book 1
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[ 1 ]. J.A.C Thomas, A textbook of Roman Law (Amsterdam, 1926) 226
[ 2 ]. David Pugsley, The Roman Law of Property and Obligations (London, 1972)
[ 3 ]. Contract. 2012. Encyclopædia Britannica Online. Retrieved 18 October, 2012, from http://www.britannica.com/EBchecked/topic/135270/contract
[ 4 ]. David Nasmith, Outline of Roman History, (London, 1890) 19
[ 5 ]. Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001 & Barry Nicholas An Introduction to Roman Law (Clarendon Press) 2
[ 6 ]. Ibid.
[ 7 ]. Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001
[ 8 ]. Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001
[ 9 ]. Ibid.
[ 10 ]. Ibid.
[ 11 ]. Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001 & Nicholas at p3
[ 12 ]. Authors such as Pugsley, Collinet and Thomas
[ 13 ]. Collinet P, The evolution of contract as illustrating the general evolution of roman law. (1932) 488
[ 14 ]. Although Collinet believes the first two to have meant the same thing.
[ 15 ]. Collinet, 488
[ 16 ]. Watson Alan, ‘The evolution of law: The Roman system of Contracts’, Law and History review Vol. 2 no. 1 (1984) 6
[ 17 ]. Collinet, 489
[ 18 ]. Watson, 2
[ 19 ]. Collinet 491
[ 20 ]. D.1.2.2.4
[ 21 ]. Liv. III 34
[ 22 ]. Borkowski and Du Plessis, 30 - 31
[ 23 ]. Borkowski and Du Plessis, 37
[ 24 ]. ibid.
[ 25 ]. ibid.
[ 26 ]. ibid, 38
[ 27 ]. H. Roby, An Introduction to Justinian’s Digest (Cambridge, 1884) 197
[ 28 ]. Ibid, 199
[ 29 ]. Ibid, 32
[ 30 ]. D.1.2.2.10
[ 31 ]. Borkowski and Du Plessis, 33
[ 32 ]. R.Zimmerman The law of Obligations: Roman Foundations of the Civilian Tradition (JUTA 1990) 546
[ 33 ]. Watson, 3
[ 34 ]. Watson, 4 & J. Muirhead, The Law of Obligations in the Latter Roman Republic, (Oxford, 1965)
[ 35 ]. G4.17a
[ 36 ]. Britannica
[ 37 ]. D.45.1.5.1 in Pomponius, Sabinus, book 26
[ 38 ]. Pugsley, 65
[ 39 ]. D.22.2.8 & D4.8.40 used by Watson on p2
[ 40 ]. D45.1.91.3 ibid on p3
[ 41 ]. D45.1.72 ibid on p6
[ 42 ]. D.36.3.1.15
[ 43 ]. D.45.1.137pr. from Venuleius, Stipulations, book 1
[ 44 ]. D.45.1.1.6 from Ulpian, Sabinus, book 48
[ 45 ]. Pugsley, 65 - 8
[ 46 ]. Watson, 3
[ 47 ]. Watson, 5
[ 48 ]. Zimmerman, 546
[ 49 ]. Muirhead, p204
[ 50 ]. Elias. D, Roman Law in a Nutshell (London, 1945) p41
[ 51 ]. Dig. 12.1.2,1
[ 52 ]. D.12.1.2.1 from Paul, Edict, book 28
[ 53 ]. Wille’s p948
[ 54 ]. Elias, p42 & R.W Lee, The Elements of Roman Law (London 1956) 291
[ 55 ]. D.12.6.5.10 from Ulpian, Edict, book 28
[ 56 ]. Elias, 42
[ 57 ]. Watson, 160 & Lee, 295
[ 58 ]. Collatio 10.7.11
[ 59 ]. D.16.3.1.4 from Ulpian, Edict, book 30
[ 60 ]. D.16.3.1.8 from Ulpian, Edict, book 30
[ 61 ]. Elias, 43
[ 62 ]. D.13.7.9.3 from Ulpian, Edict, book 28
[ 63 ]. Elias, 45
[ 64 ]. D.18.1.1.2 from Paul, Edict, book 33
[ 65 ]. D.18.1.9pr from Ulpian, Sabinus, book 28
[ 66 ]. D.19.1.31pr from Neratius, Parchments, book 3
[ 67 ]. D.18.1.43.2 from Florentinus, Institutes, book 8
[ 68 ]. Elias, 46
[ 69 ]. D.19.2.2pr from Gaius, Common Matters, book 2
[ 70 ]. D.19.2.24.4 from Paul, Edict, book 34
[ 71 ]. D.19.2.38pr from Paul, Rules, sole book
[ 72 ]. D.19.2.24 from Paul, Edict, book 34
[ 73 ]. Elias, 47
[ 74 ]. Elias, 47
[ 75 ]. D.17.2.29.1 from Ulpian, Sabinus, book 30
[ 76 ]. Elias, 48
[ 77 ]. D.17.1.1.4 from Paul, Edict, book 32
[ 78 ]. D.17.1.20pr from Paul, Sabinus, book 11
[ 79 ]. D.17.1.8.6 from Ulpian, Edict, book 31
Bibliography: Secondary Sources: Andrew Borkowski and Paul du Plessis, Textbook on Roman Law 3 ed, (Oxford, 2005) Collinet P, The evolution of contract as illustrating the general evolution of roman law. (1932) 488 David Nasmith, Outline of Roman History, (London, 1890) 19 David Pugsley, The Roman Law of Property and Obligations (London, 1972) Elias J.A.C Thomas, A textbook of Roman Law (Amsterdam, 1926) 226 J R.Zimmerman The law of Obligations: Roman Foundations of the Civilian Tradition (JUTA 1990) Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC Watson Alan, ‘The evolution of law: The Roman system of Contracts’, Law and History review Vol. 2 no. 1 (1984) 6 Primary Sources: [ 1 ]. J.A.C Thomas, A textbook of Roman Law (Amsterdam, 1926) 226 [ 2 ] [ 3 ]. Contract. 2012. Encyclopædia Britannica Online. Retrieved 18 October, 2012, from http://www.britannica.com/EBchecked/topic/135270/contract [ 4 ] [ 5 ]. Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001 & Barry Nicholas An Introduction to Roman Law (Clarendon Press) 2 [ 6 ] [ 7 ]. Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001 [ 8 ] [ 11 ]. Steven Kreis, Lectures on Ancient and Medieval European History, Lecture 11: Republican Rome, 509 – 31BC. 2001 & Nicholas at p3 [ 12 ] [ 13 ]. Collinet P, The evolution of contract as illustrating the general evolution of roman law. (1932) 488 [ 14 ] [ 32 ]. R.Zimmerman The law of Obligations: Roman Foundations of the Civilian Tradition (JUTA 1990) 546 [ 33 ] [ 34 ]. Watson, 4 & J. Muirhead, The Law of Obligations in the Latter Roman Republic, (Oxford, 1965) [ 35 ]
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