!!Экзамен зачет 2023 год / The Law of Obligations

mattered; of importance was only that the parties had reached consensus at the same time and the same place. The sole remaining ground on which this "stipulation" could still be invalidated was that either of the parties (or both of them) had not been present. In the course of the next fifty years this obviously proved to be a loophole through which, in the words of Justinian,82 litigious men would try to escape liability, maintaining—after a while—that either they or their opponents had been absent when the contract was concluded. Justinian tried to curb undesirable lawsuits ofthat nature and therefore provided for a strong presumption: ". . . tales scripturas, quae praesto esse partes indicant, omnimodo esse credendas."83 This could be refuted only if it was shown ". . . manifestissimis probationibus et melius quidem, si per scripturam , . . ostenderit"84 that the parties had not been in the same town on the day the instrument was executed.85 Thus he substituted "the mere possibility that the parties may have been present

. . . for the material fact of their presence".86 In a way, therefore, one can say that Justinian's legislation falls in line with previous developments: for all practical purposes the stipulation had now been converted into a written contract. In the practice of his time the formal oral stipulation no longer existed.87 And yet, as has been pointed out already, in order to preserve the wealth of ideas from the classical law of contract, Justinian had to take over into his Digest—as if they still represented the law of his time—many texts based on the oral formalities. He bridged that gap by way of a fiction: if the parties had put their transaction down in writing and had indicated in this document that both parties had been present, then, unless it could be proved that one of the parties had in fact been absent from the town for the whole day, the promise was taken to have been given orally. With regard to his theoretical conception of a stipulation, Justinian therefore

"sollemnia verba". According to van Oven, (1958) 26 TR 415 sqq., too, Leo's Constitution did not change very much. He sees the sollemnitas that was abolished in the correspondence of the verb used in question and answer. Also according to MacCormack, Siudies 'I'homas, pp. 99 sq., the stipulation remained an oral act. He, however, takes the constitution to have been of a purely declaratory nature (". . . fit] cannot have abolished any particular requirement") and argues that the correspondence requirement had already been watered down in classical law. For older literature, see Windscheid/Kipp, § 312, n. 2.

82Inst. Ill, 19, 12; C. 8, 37, 14, 2.

83Inst. Ill, 19, 12.

84C. 8, 37, 14, 2.

85To show his displeasure at these kinds of stories, Justinian used strong language ("improbis aliegationibus").

*6 Riccobono/Kerr Wylie/Beinart, p. 57.

Differently, MacCormack, Studies Thomas, pp. 96 sqq.; to some extent also Diosdi, pp. 61 sq.

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fell behind what had been accepted by Leo. By somehow trying to reconcile the irreconcilable (i.e. classical theory and modern practice)88 and by admitting texts and enactments from different stages of the development into his Corpus Juris Civilis, he left the law of stipulation on a rather discordant note in this enactment.89

6.The importance of form and formality

(a)Form as the oldest norm

The history of stipulation provides a good example of the importance of form and formalism in Roman law.90 Legal effects in ancient Roman law, as in other early legal systems, could be achieved only by way of formal acts. When we think of formal transactions today, we see the form as accompanying the legal act; it has usually been introduced by the legislator, for specific policy considerations, as an additional requirement for the validity ofthat act.91 But this, in the development of a legal system, is a relatively modern thinking pattern. Originally, form itself created the legal effect; it was, as Gerhard Dulckeit92 has put it, "Wirkform" (effective form) rather than "Schutzform" (protective form). Compliance with the form was the actual reason (not only a necessary requirement) for the existence and recognition of a legal effect. Historically, this concept of form is based on a primitive belief in its magical nature.93 If we take, for example, the law of obligations, we have seen that, originally, the hostage given to the creditor as a pledge was probably physically bound: "obligatus" in the literal sense. When this real bond was in the course of time superseded by an ideal, imaginary bond, the binding nature of the latter had to be secured somehow. Therefore, the creditor's real power over the body of the

8g As to the "two souls in Justinian's bosom" in this context, see, Levy, Obligationenrecht, p. 59.

K9 For the later history of stipulation cf. infra, pp. 546 sqq.

90 One of the best accounts is still that by R. von Jhering, Geist II, pp. 470 sqq.; cf. also

Ludwig Mitteis, Romisches Privatrecht bis auf die Zeit Diokletians, I (1908), pp. 225 sqq.

У1 Differently, for example, art. 1341 code civil, which prescribes that all transactions of more than 5 000 ffrs must take the form of private writing or of a notarial document. But non-observance of the form does not entail invalidity of the transaction. Only the testimony of witnesses is excluded; in other words, the informal transaction cannot be proved in court. Also, according to the Statute of Frauds (1677, England), transactions which do not observe the prescribed forms ("a note or memorandum of the agreement in writing and signed by the party to be charged therewith") are nor void, but rather unenforceable; on the Statute of Frauds, Simpson, History, pp. 599 sqq. For alternative consequences of a lack of form in German law, cf. Rudolf Westerhoff, "Wie begrunden wir Formnichtigkeit?", (1984) 184

Archiv fiir die civilistische Praxis 376 sq.

92 "Zur Lehre vom Rechtsgeschaft im klassischen romischen Recht", in: Festschrift fur Fritz Schulz, vol. I (1951), pp. 160 sqq. Cf. also Jors/Kunkel/Wcnger, p. 90; Kaser, RPr I, pp. 39 sq.

уз Cf. Kaser, Altromisches ins, pp. 301 sqq.; idem, RPr I, p. 28; Dulckeit, Festschrift Schulz, vol. I, pp. 162 sq.; contra: Geoffrey MacCormack, "Formalism, Symbolism and Magic in Early Roman Law", (1969) 37 TR 439 sqq., 447 sqq.; idem, "Hacgerstroem's Magical Interpretation of Roman Law", (1969) 4 The Irish Jurist 153 sqq.

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person who was liable came to be replaced by a magical power over him and it was for this purpose that a formal ritual had to be performed. These rituals were devised by the state priests who, at that time, were not only in charge of sacral affairs, but were also responsible for the application and development of the law.94 They all entailed the uttering of precisely set, formal words, often reinforced by the performance of symbolic acts, as, for example, laying one's hands or a staff on the object of the transaction. It was only by means of these rituals that legal transactions could be effected: compliance with the ritual formalities brought about a real (but invisible and in so far magical) change in the relationships between the parties concerned. The slightest mistake would wreck the whole transaction: every reader of fairy tales knows that magical effects can be engendered only by a most punctilious recital of a set formula. Procedure has always been a prominent arena for this kind of formalism and thus we cannot be surprised to read what Gaius reports about "nimia subtilitas veterum" relating to the legis actio procedure:

"unde cum qui de vitibus succisis ita egisset, ut in actione vites nominaret, responsum est rem perdidissc, quia debuisset arbores nominare, eo quod lex XII tabularum, ex qua de vitibus succisis actio compcteret, generaliter de arboribus succisis loqueretur.'"^

A very similar formalism is known to have governed the old Germanic procedure:96 qui cadit a syllaba, cadit a causa. But whilst the old legis actiones were by the time of classical law no longer in use, many of the formal transactions of private law were; and the stipulatio (besides mancipatio and in iure cessio) was one of the most important of them. Even though there was now, of course, no longer any magic in an exchange of oral question and answer in free, if corresponding, words, its basic structure had, as we have seen, been reverently preserved. As a consequence, the liability of whoever had made a promise could not extend beyond what was covered by the words used; but, on the other hand, he would also be held relentlessly bound by those words. As long as the formalities had been correctly executed, the act was fully

94 As to the pontifical nature of the ancient Roman jurisprudence, cf. Jhering, Geist II, pp. 390 sqq.; Kaser, Altromisches ins, pp. 345 sqq.; Schulz, RLS, pp. 6 sqq., 15 sqq.; Wieacker, RR, pp. 310 sqq. and passim.

95Gai. IV, 11; cf. also IV. 30.

ьCf. E. Kaufmann, in: HRG, vol. I, col. 1163 sqq.; for grotesque extremes in the 13th/14th centuries cf., for example, 68, 7 of the Lehenrecht of the Sachsenspiegel, where Eike

von Repgow found it necessary to state: "Wenn der Mann im Lehengericht sich die is'ase putzt oder sich schneuzt oder spuckt oder gahnt oder wenn er hustet oder niest oder auj der anderen Seite seines Vorsprechers steht, als er zunachst stand, oder wenn er sich schicklich umschaut oder Fliegen, Mucken oder Bremsen schicklich von sich scheucht, so hat er deswegen kein Strafgeld verwirkt, obwohl dies einige Leute glauben" (cf. the edition by C. Schott, 1984) (If, in the feudal court, the man blows his nose or spits or yawns or when he coughs or sneezes or stands on the other side of his prompt than he first stood, or if he turns around in gentlemanly fashion or brisks away in gentlemanly fashion flies, mosquitoes or horseflies, he does not on that account incur a penalty, although some people think so).

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84 The Law of Obligations

effective, no matter whether those effects had in actual fact been willed or not. It is obvious that under those circumstances a gap could develop between what was wanted and what was formally declared and, if one took only the latter into consideration, hard and inequitable results were likely to ensue. But it is quite ahistorical to envisage the problem in this way with regard to an ancient legal system. Right until the Republic it would not have occurred to the Roman lawyers that a discrepancy between will and word could exist.97 The actual reason for the desired legal result was not the consent between the parties but the formal exchange of the words. The true will of the parties could be discovered only from the words.98

One may, incidentally, well raise the question whether strict adherence to this principle was really as harsh as it seems to us today. When we are inclined to take offence at the fact that a deviation from the required form would invalidate the whole transaction, even though there might have been substantive agreement between the parties, we proceed from the supposition that the parties really wanted to be bound under those circumstances and merely somewhat carelessly neglected to observe the form. But it is equally possible that non-compliance with the form signified the intention of the parties not to be bound! Considering the simple and uncomplicated nature of the stipulation, so familiar to every Roman citizen, the second possibility is arguably the rule rather than the exception.99 Furthermore, in predominantly agrarian early societies legal transactions were not as commonplace as they are today and were therefore approached with gravity and concentration. Considering the importance of the act, one therefore did not mind the demands made upon the parties' precision and attention. Thus what we regard as formalism today was not perceived as such in early Roman law. Form, then, in this sense, can be said to be the oldest norm.

100

(b) From "effective" form to "protective" form

In the course of time, however, this attitude changed. In the wake of the rise of the informal contracts, the meeting of the minds, the agreement of the parties concerned, came to be accepted increasingly as the cornerstone of and actual effective reason for all contractual

97The same applies to other early legal systems. Two examples from the Bible spring to mind: Jacob's marriage to Leah and Isaac's blessing given to Jacob instead of to Esau were both unquestionably valid despite Jacob's and Laban's deceit.

98Along the same line Cclia Wasserstein Fassberg, "Form and Formalism: A Case Study", (1983) 31 American Journal of Comparative Law, 630: "Nothing had happened if the form was absent because only by means of form were the public, religious requirements of certainty and society fulfilled. For the same reason, just as nothing had happened in law, nothing had happened in fact."

"Jhenng, Geist II, p. 492.

l™ Wilhelm Ebel, Recht und Form (1975), pp. 13 sq.; Wieacker, Vom romischen Recht, p. 76;

idem, RR, pp. 320 sqq.

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obligations. This agreement, as far as all the more important transactions were concerned, would as a matter of course be recorded, but such a document served an evidentiary purpose only. Thus, with the increase in the use of writing101 we find a shift from "effective form" to "protective form".102 The documentation merely accompanied the transaction and did no longer in itself represent and embody it; where it was made mandatory, it served to promote specific policy considerations: certainty of the law, facilitation of tax enforcement, etc. As far as the stipulation was concerned, however, the effective and protective functions in post-classical law became somewhat confused. As we have seen, the oral formality was gradually superseded by the drafting of an instrument. When this happened, under the influence of Hellenistic practice and tradition,103 one of the characteristics of the question-and-answer ritual, namely its obligatory effect, passed to the instrument. This is where the roots of the modern law of negotiable instruments are to be found.104 But as, on the other hand, no sharp distinction was drawn between constitutive and simply evidentiary documents, the original idea of the written document merely providing evidence for the (oral) conclusion of a stipulation was never entirely lost.

(c) Formal requirements in modern contract law

Modern legal systems still know the written record (in its many variants ranging from simple writing to a document attested by an independent public official)105 as a formal requirement, though only for specific transactions and as an exception to the general rule that all formless agreements are enforceable.106 Often, certain formalities have to be observed with regard to the contract of sale of land,107 (usually justified by the consideration that landed property, as a rule, is the most important of the seller's assets).108 Contracts of guarantee are another

1ІЪ The notary in Germany is entrusted with the recording oflegal transactions; there is no comparable official in English law.

10 Cf. the comparative analysis by Zweigert/Kotz/Weir, pp. 53 sqq.

107 Cf. § 313 BGB; s. 40 Law of Property Act (1925, England); Alienation of Land Act, 68/1981 (South Africa); for a thorough comparative discussion, see Bernd von Hoffmann,

Das Recht des Grundstuckskaufs (1982), pp. I l l sqq.

1UK Questioned by Zweigert/Kotz/Weir, p. 51 (". . . [this consideration] gives immovable property a special status not justified by modern conditions, but it is in any case unavoidable to require some degree of formality for transactions in land since otherwise there would be no clear basis for making entries in the Land Register"). Cf. also von Hoffmann, op. cit., note 107, pp. 4 sqq.

109 S 766 BGB; Statute of Frauds.

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86 The Law of Obligations

in standing surety are not realized by many; promises of gift can be mentioned as a third110—here it would otherwise often be difficult to determine whether a specific declaration was meant to be taken seriously. Sometimes the legislator subjects new types of legal transactions to a statutory form: one may think of § 2 AGBG111 and § 1a AbzG112 which have been introduced in the interest of consumer protection. Still, the general trend is towards informality, at least as far as the traditional core areas of private law are concerned. "lus vigilantibus scriptum" was the call of 19th-century liberalism, in the spirit of which the excessive formal requirements enacted under the patronizing and paternalistic aegis of enlightened absolutism113 were shaken off: people should normally be able to look after their interests themselves and should not have to be tied to the apron strings of statutory formalities. But even where specific forms are still required, a tendency is often observable in the practice of the courts to water down such rules.114 They have all been introduced in order to achieve certain legislative purposes: to facilitate proof of the transaction,115 to give an opportunity for thoughtful consideration and thus to prevent rash and precipitate declarations, or—in the case of notarial authentication— to provide for legal consultation.116 It is, of course, perfectly possible that, in an individual case, these aims could have been realized in other ways, even though the formal requirements were not met by the parties: anxious consideration of all the risks involved may well have preceded the oral promise to stand surety; the oral promise to sell a piece of land may have been given by a professor of property

112Writing required in the case of instalment sales (so that the purchaser's attention is drawn to the financing charges).

113Cf., tor example, as to the provisions of the PrALR, the comment by Jhering, deist II, PP483 sq.

"English Judges have done their best to restrict the area of application of the Statute of Frauds, helped in their tortuous construction by the remarkable opacity of the statutory text": Zweigert/Kotz/Weir, p. 46. In France the courts have watered down art. 1341 code civil by means of a widely construed doctrine of "commencement de preuve par ecrit":

testimony ot witnesses is admitted, whenever the leading of evidence can at least be started off with a written document. For the attitude of the German courts, see n. 119.

113 This was the reason for the enactment of the Statute of Frauds: "For the prevention of many fraudulent Practices which are commonly endeavoured to be upheld by Perjury and Subornation of Perjury", i.e. fraudulent plaintiffs bringing claims on non-existent contracts; the background is sketched by Simpson, History, pp. 599 sq.; cf. further esp. Ernst Rabel, "The Statute of Frauds and Comparative Legal riistory", (1947) 63 LQR 174 sqq. An amusing example of the evidentiary function of form is related by Paul Vinogradoff, Outlines of Historical Jurisprudence, vol, I (1920), p. 364: in early Bavaria and Alemannia transfers of land had to be performed in the presence of a certain number of" small boys who, after attending the ceremony, were treated to a box on the ear in order that they might keep a vivid remembrance of what had happened. Without such a box, the transfer was void.

116 Cf. e.g. Karl Heldnch, "Die Form des Vertrages", (1941) 147 Archiv fur die civilistische Praxis 91 sqq.; Lon L. Fuller, "Consideration and Form". (1941) 41 Columbia LR 799 sqq. (who adds what he refers to as the "channeling function").

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testator might have made his intention to institute his niece as heir absolutely clear.117 The sanction of invalidity therefore seems to overshoot the mark: it is not demanded by the policy underlying the rules requiring formality of the act. Strict and uncompromising application of the law under these circumstances is often denounced as "formalistic".118 Equitable inroads have therefore from time to time been made into the domain of statutory forms. One of the most notable instances has been the willingness of the German Federal Supreme Court to enforce contracts for the sale of land, which lack the form prescribed in § 313 BGB, if the basic principle of good faith so demands: this, in the view of the court, is the case if the result would otherwise be "plainly intolerable" (so: and not only "hard") for the party relying on the validity of the transaction.119 Such tendencies, however, are of a questionable nature. Ours is an age of formlessness. We like to focus our attention on the individual case and therefore tend to overemphasize the disadvantages of form. Indeed, it is indisputable that form not only entails a certain amount of inconvenience; it is also dangerous, in that a small flaw can have grave, harsh and unexpected consequences.

(d) Formalism or flexibility?

The advantages of form, on the other hand, are less noticeable, because they are of a negative nature.120 Whenever a transaction is held invalid due to a formal lapsus, one's sense of equity is incensed;121 it is hardly ever emphasized, however, how many rash, ill-conceived and

17 The law of (testate) succession is, of course, one of the main battlefields with regard to this problem. See, for instance, for Germany, the classic monograph by Fritz von Hippel, Formalismus und Rechtsdogmatik (1935); for a recent comparative survey Fassberg, (1983) 31 American Journal of Comparative Law 627 sqq.; and for South Africa, see Ellison Kahn, "The Will that Won't", in: Huldigingsbundel Paul van Warmelo (1984), pp. 128 sqq.

11R On formal and formalistic reasoning in contract law, see P.S. Atiyah, "Form and Substance in Legal Reasoning; the Case of Contract", in: The Legal Mind, Essays for Tony Honore (1986), pp. 19 sqq.

9 The line of the Federal Supreme Court has varied; cf. the analysis by Joachim Gernhuber, "Formnichtigkeit und Treu und Glauben", in: Festschrift fur Walter Schmidt' Rimpler

(1957), pp. 151 sqq.; Ludwig Hasemeyer, Die gesetzliche Form der Rechtsgeschafte (1971), pp. 36 sqq.

120On the advantages and disadvantages of form, see Jhering, Geist II, pp. 47U sqq.; on form and substance in legal reasoning cf. Atiyah, Essays Honore, pp. 19 sqq., 33 sqq.

121A frontal attack on the forma] requirements for wills has been launched by Gerhard Kegel, "Die lachenden Doppelerben", in: Festschrift ?ir Werner Flume (1978), vol. I, pp. 545 sqq. In case of a failure of a will as a result of the testator's lawyer's negligence, the intended beneficiary, according to Kegel, may take directly under the will (and thus dethrone the intestate heir). The Federal Supreme Court, on the other hand, has adopted the view that the intended beneficiary may claim damages from the negligent lawyer (as a result of which we would have, in actual fact, one person taking under the will, the other by way of claiming damages). Against both solutions cf. Reinhard Zimmermann, "Lachende Doppclerben?— Erbfolge und Schadensersatz bei Anwaltsverschulden", 1980 Zeitschrift ?ir das gesamte Familienrecht 99 sqq. Cf. also John G. Fleming, "Comparative Law of Torts", 4 Oxford Journal of Legal Studies 239 sq.; Owen Rogers, "The Action of the Disappointed Beneficiary", (1986) 103 SALJ 583 sqq.

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The Law of Obligations

inequitable transactions have been prevented due to compliance with a statutory form. It is in the interest of these many cases that hardship in an individual situation has to be accepted. The broader legislative purpose behind provisions which lay down formal requirements can be achieved only if they are strictly applied. The extent to which that is possible naturally depends largely on the general appropriateness of such provisions in pursuing the legislative policy,122 and on whether there has been reasonable reliance which needs to be protected.123 But it should be clearly recognized that an individualizing approach misses the essence of statutory form in its typifying purport. Insurmountable difficulties in defining and demarcating exceptional cases (what is only "hard" as opposed to "plainly intolerable"?) are the consequence.

The attitude of a legal culture towards form reflects its self-image and maturity. At the same time, the form in which the law appears and finds expression is an image of the general spirit of the age. Strict formalism and rigidity are characteristic of the archaic agrarian society, governed by strict discipline and living in accordance with typified behaviour patterns. The other extreme is absolute freedom, unlimited individualism and arbitrariness. Its legal expression is formlessness and the boundless sway of equity; its general intellectual background is one of superabundance and profusion of material, spinelessness and mental exhaustion.124 Formalism and flexibility are intrinsically opposed to each other. The one makes for certainty of the law, the other for equity—the two principles on which justice is based. These principles are antagonistic. Yet the legal system must try to realize both simultaneously. That makes ideal justice a Utopian idea, for the one principle must always be precariously balanced against the other. To carry through the one without any regard to the other would lead to extreme injustice: summum ius summa iniuria.125 The legal system thus has to strive for a coincidentia oppositorum on the highest attainable level. It is submitted that Roman jurisprudence under the Principate

122As a negative example, cf. the formalities required for the holograph will before the Testamentsgesetz of 1938; a will was void, even if only the place where it had been drawn up had not been written by hand, because it was printed on the letter paper of a hotel.

123Cf. the English doctrine of part performance: on its evolution by the Court of Chancery, see Simpson, History, pp. 613 sqq.; cf. also the (American) Restatement Contracts

2d ^1982), § 129.

'"4 Zimmermann, Moderationsrecht, pp. 189 sq. This development from self-assured primitivity to artistic perfection coupled with formal disintegration and depletion of meaning is usually well illustrated by the development of art; a comparison between the early Greek kouroi with their strictly mathematical and rectilinear frame of reference with the Hellenistic sculptures is particularly instructive.

125Cf. Cicero, De qfficiis 1, X—33, probably of Greek origin; cf. Georg Eisser, "Zur

Deutung von 'summum ius summa iniuria' im romischen Recht", in: Summum ius summa iniuria (1963), pp. 1 sqq. Thus, Rudolf von Jhering could state, in a seemingly paradoxical way: "Die Form ist die geschworene Feindin der Willkur, die Zwillingsschwester der Freiheit" (Form is the archfoe of arbitrariness, the twin sister of freedom): Geist II, p. 471.

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came as close as is humanly possible to achieving such harmonization and therefore truly deserves the epithet "classical".126

7. The flexibility of the Roman stipulation: range of application

Contrary to Germanic law, Roman law displays a remarkable inclination towards clarity and simplicity.127 This is quite obvious if one looks at the formal transactions of classical Roman law. There was a notable restraint in developing new forms. In general, existing forms were used and, if necessary, adapted, extended or made—with or without modification — to serve new purposes. Thus Ernst Rabel has coined the term "nachgeformte Rechtsgeschafte"*28 (transactions shaped in the old mould), and one has only to think of in iure cessio and mancipatio for a whole variety of examples: in iure cessio constituted a ritual imitating legal proceedings in the course of which the defendant acknowledged the plaintiff's allegations, and it could thus be used to effect a transfer of certain rights between two parties; mancipatio nummo uno, essentially an imaginary cash sale, could conveniently be employed to become, for example, the main form of making a will. In the case of stipulatio, its usefulness and flexibility made it the cornerstone of the Roman contractual system, a cornerstone which, incidentally, has no parallels in other historical legal systems.129 As it was their form and not their content upon which the legal effects of stipulations were based and as this form was simple, clear and unspecific (i.e. not stamped by the peculiarities of specific types of transactions which they might have been designed to accommodate), stipulations were apt to be employed for very different purposes; in fact, they could be made to accommodate everything that could conceivably be the object of a contractual obligation: dare, facere, praestare (as long, of course, as such content was not illegal or immoral).130 in the beginning there was possibly only the stipulation for a certum, which was enforceable by means of a condictio (or: actio certae creditae pecuniae) as long as certa pecunia was involved, and by

126As to the "classicity" of classical Roman law, cf. also Schulz, RLS, pp. 99 sqq. As far as the concept "classical" is concerned, see generally, in the sense indicated in the text above, Fritz Schachermeyr, Forschungen und Betrachtungen zur griechischen und romischen Geschichte

(1974), pp. 145 sqq.

127Cf. generally Schulz, Principles, pp. 66 sqq.; also jhering, Geist III, pp. 139 sqq., 178

5ЯЧ-

ns Ernst Rabel, "Nachgeformte Rechtsgeschafte", (1906) 27 ZSS 29U sqq. ; (1907) 18 ZSS 311 sqq.; cf. also Liebs, Sympotka Wieacker, pp. I l l sqq.

129 But see F. H. Lawson, "Analogues of the Stipulatio in English Law", in: XXth century Comparative and Conflicts Law, Legal Essays in Honor ofHessel E. Yntema (1961), pp. 117 sqq. However, Lawson does not deal so much with the form of the stipulation but highlights two other aspects: the fact that the promisee, if he is to be able to sue on the promise, must extract it from the promisor, and that he must draft the terms that he wants, i.e. that the promisee must take the initiative.

130 Cf. e.g. Riccobono/Kcrr Wylie/Beinart, pp. 26 sq.; Siber, Romisches Privatrecht, pp. 178 sq.

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means of a condictio certae rei as far as specific objects or a certain quantity of fungible things was concerned. The formula of the condictio was simply: "Si paret Nm Nm A° A° decern milia dare oportere, iudex Nm Nm A° A° decern milia condemnato, s.n.p.a." In the case of the condictio certae rei the intentio did not contain a sum of money but, for example, "tritici Africi optimi modios". Thus, because of "omnis condemnatio pecuniaria", the iudex had to be directed in the condemnatio to estimate the pecuniary value of the claim (". . . quanti ea res est, tantam pecuniam . . ."). But once this discretion of thejudge was recognized, there was nothing in principle opposed to admitting stipulations for an incertum: stipulations where even the object of the claim was not at all fixed, but was left for judicial determination. On the basis of such an actio ex stipulatu, thejudge had to condemn the defendant in "quidquid ob earn rem Nm Nm A° A° dare facere oportet".131 An example is discussed in Ulp. D. 45, 1, 75, 4: "Illud dubitationem recipit, si quis id, quod ex Arethusa ancilla natum erit, aut fructus, qui in fundo Tusculano nati erunt, dari sibi stipulatus sit, an certum stipulatus videatur. sed ipsa natura manifestissima est incerti esse hanc stipulationem." Here the stipulation was "Id quod ex Arethusa ancilla natum erit {fructus qui in fundo Tusculano nati erunt), dari spondes?" "Spondeo". Not only the estimation of the pecuniary value of the object but the object itself had to be determined before judgment would be given.

Thus the scope of the contract of stipulation was immense indeed.132 As Roman law never recognized the general principle of "ex nudo pacto oritur actio",133 the stipulation was the means to achieve what could not be achieved by formless consent. But even where informal contracts would have been at hand the Romans often availed themselves of the stipulation in order to create an obligation. Thus, stipulations were regularly used to strengthen a loan (and to add certain ancillary clauses that could accompany a loan), to replace an already existing obligation with a new one (novation), to make a donation or to promise a dowry, to buy a specific quantity of unascertained goods (this was of particular importance since a consensual sale by description was not enforceable),134 or to give specific guarantees (these are the manifold "cautiones" that we find both in private law and in the law of procedure:135 the cautio usufructuaria, the cautiones rei uxoriae or rem pupilli salvam fore, the stipulatio duplae, the cautio damni infecti or the cautio iudicatum solvi to mention a few). By way of example, two areas of application (conventional penalties and suretyship contracts) will be examined more closely in the following chapters.

131Gai. IV, 136 u" Gai. IV, 136.

132Schulz, CRL, p. 478.

133Cf. infra, pp. 509 sqq.

134Cf. infra, pp. 236 sqq.

135Kaser, RZ, pp. 335 sq.

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