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Stipulatio

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into consideration that sponsio (etymologically descending from (jTTevbiu, to present a drink-offering) had a sacral origin with the promisor being forfeited in case of non-compliance with his promise to the god or goddess who had been invoked.18 Thus, one can well imagine that many Romans still sensed certain oath-like connotations when using the word "spondeo" at a time when all sacral effects and sanctions had long fallen away. However, during the later Republic a moral decline set in and people were less and less prepared to adjust their lives in accordance with the traditional behaviour patterns based on the old Roman virtues; also, as we have seen in the Gaius fragment quoted above, words other than spondere came to be used—a development largely due to the influence of the increasing number of legal relations with peregrini. Thus, if we look at the development of the practice of stipulations, we find a gradual rise in the use of written documents.19 Hand in hand with this went a tendency to relax the rigidity of the old law.20 These two developments will now have to be examined more closely. Whilst their general trend cannot be disputed, it has to be emphasized that many details as to the time when specific decisions were taken and when the classical stipulation started to undergo major transformations are in dispute. Many of the texts in point have been or are still regarded as spurious. It must be borne in mind that Justinian's reform of the law of stipulation is "one of the most imposing that we find in the Corpus Juris".21 On the one hand, Justinian tried to save the richness of thought and argument that had been tied up with the classical stipulation; thus, he took over many of the old texts dealing with stipulations.22 On the other hand, of course, he had to take account of the large-scale development of the law that had taken place since then, and in his Corpus Juris he had to accommodate the law and custom of his time. In order to achieve this,

1H On the origin and early history of stipulatio and sponsio, see Okko Bchrends, Der Zwotftafelprozess (1974), pp. 34 sqq.; David Daube, "Sponsor and the History of Contract", (1946) 62 LQR 266 sqq.; Rudolf Dull, "Zur romischen Stipulatio", (1951) 68 ZSS 191 sqq.; Jolowicz/Nicholas, pp. 280 sqq.; Kaser, Altromisches ius (1949), pp. 256 sqq.; idem, RPr I, pp. 168 sqq.; but cf. also Pierre Cornioley, "De 1a 'sponsio' a 1a stipulation: procedure et

'contrat'", in: Sodalitas, Scriiti in onote di Antonio Guarino, vol. VI (1984), pp. 2891 sqq.

Generally on the increased use of writing in Roman law, see Jolowicz/Nicholas, pp. 414 sqq.; Kaser, RPr I, pp. 230 sqq.

"The degeneration of the purely oral stipulation is twofold. On the one hand . . . the strictness of the formal oral requirements is relaxed. . . . On the other hand . . . the oral stipulation eventually disappears from practical use and gives place entirely to the written. This is, indeed, not degeneration at all, but atrophy. It is, moreover, impossible, and is likely to remain so, to determine how far advanced this atrophy was at any particular period": Barry Nicholas, "The Form of the Stipulation in Roman Law", (1953) 69 LQR 241. 21 Riccobono/Kerr Wylie/Beinart, p. 84.

Cf. Levy, Obligationenrecht, p. 53: "Fasziniert von der Mission, als Restaurator der goldenen Zeit des romischen Rechtes in die Geschichte einzugehen, und tief beeindruckt von der lichtvollen Durcharbeitung, die einst der Verbalvertrag empfangen hatte, versucht er durch weite Strecken, die klassische Analyse zu retten." (Fascinated by the mission to go down in history as the restorer of the golden age of Roman law and deeply impressed by the inspired manner in which the verbal contract had been shaped, he sought to a large extent to save the classical analysis.)

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72	The Law of Obligations

he used fictions and interpolations. How far he went in the use of the latter method, however, is very difficult to determine.

3.Relaxation of the word formalism

(a)The words to be used

We have already seen that one of the forms of stipulation (namely the one characterized by the use of the word "spondere") was of sacral origin. There may have been a second, non-sacral root to stipulation.23 But it is also possible that "stipulari", in ancient Roman law, was always connected with an oath (i.e. the act of sponsio).24 Originally, there were probably further formalities, as can still be seen in the word "promise" (derived from "promittere", literally: "to stretch forward" (sc. : one's hand)). The word "stipulari" itself goes back to "stips", so that some staff ritual was probably involved as well.25 In the later Roman Republic, however, there was no longer any sign ofthat. What remained was the simple and convenient oral formality. The sponsio stipulatio was not treated any differently from the other forms, except that its use was restricted to Roman citizens.26

Peregrines could use the other verbs mentioned in Gai. Ill, 92; these then became available to Roman citizens too. There is some dispute as to how far this relaxation of the word formalism went. According to Nicholas,27 the list given by Gaius represents a numerus clausus: only those verbs could be used to conclude a valid stipulation. One would then have to take "veluti" to mean "as follows" and not translate it as "for example". That is not impossible, but it is unlikely. The prevailing opinion28 therefore maintains that Gaius, as a good teacher would, merely gave a couple of examples, but that any other verbs could also be used. Indeed, it is difficult to see why "facias?" "facio"—should have been allowed, but not a more specific term describing what type of work had been promised in the individual case. Moreover, even the use of Greek (and possibly also the Punic and Syriac languages) was permissible, provided each of the parties understood the language

23Cf. e.g. Kaser, RPrl, p. 169.

24Cf. e.g. Behrends, op. cit ., note 24, p. 35.

Or a symbolic binding with a haulm (stipula)? For these and other hypotheses c{., for example, Dull, (1951) 68 ZSS 191 sqq.; Detlef Liebs, "Contrarius actus. Zur Entstehung des romischen Erlassvertrags", in: Sympotica Franz Wieacker (1970), pp. 134 sq.; Geoffrey MacCormack, "Formalism, Symbolism and Magic in Early Roman Law", (1969) 37 TR 453 sqq. Cf. also already Inst. III, 15 pr.: "Quae hoc nomine inde utitur, quia stipulum apud veteres firmum appellabatur, forte a stipite descendens."

26 Gai. Ill, 93, 94. On the relationship between sponsio and stipulatio, see, most recently, Cornioley, Scntti Guarino, vol. VI, pp. 2891 sqq.; Malte Dobbertin, Zur Auslegung der Stipulation im klassierten romischen Recht (1987), pp. 45 sqq.

"The Form of the Stipulation in Roman Law", (1953) 69 LQR 63 sqq.

28 Cf. e.g. Annemarie Winkler, "Gaius III, 92", (1958) 5 RIDA 603 sqq.; De Zulueta, Gaius II, pp. 153 sqq.

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Stipuiatio

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used.29 Of course, question and answer had to correspond, but it seems not even to have been imperative that they had to be in the same language. Thus, for example, the question might have been "0^10X07 sic?", the answer the Punic equivalent to "promitto".

(b) Unitas actus

Apart from the verb as the key word, unitas actus and correspondence of question and answer were essential elements of the Roman stipulation. Both gave rise to discussions too. As to the first, the rule is stated by Venuleius: "Continuus actus stipulantis et promittentis esse debet . . . et comminus responderi stipulanti oportet, ceterum si post interrogationem aliud acceperit, nihil proderit, quamvis eadem die spopondisset."30 The compilers, after "debet", added a little gloss: "ut tamen aliquod momentum naturae intervenire possit." One is left to speculate what "a short interval dictated by nature" may have implied: was the promisor allowed to spend a penny before he gave the answer? Or did it refer, for instance, to a sneeze or a bout of coughing? Of course, formalism would have been carried to ridiculous extremes had provision not been made for the latter type of incident. So the promisor was granted a moment of reflection; even a witticism or an elegant quotation was allowed to intervene, so that, for instance, a bit of Vergil that had been recited between question and answer31 was passed over indulgently as "supervacuus". According to D. 45, 1, 1, 1, Ulpian seems to have gone so far as to accept an intervening absence of the stipulator, provided he had been away only for an "intervallum medium" before returning to hear the answer. But when is an intervallum "medium"? Did it matter whether any other affairs were attended to in the meantime? According to Venuleius, that did invalidate the stipulation; otherwise, that is, where no other business was conducted, he seems to imply that the intervallum might extend to a full day.32 But this limit is as arbitrary as any other would have been. It is very likely that both Ulpian's medium intervallum and Venuleius' one-day period were interpolated.33 Classical law probably still required continuous presence of the parties; possibly the question was beginning to be disputed.

(c) Correspondence between question and answer

As far as the correspondence between question and answer is concerned, it has been mentioned that the reply could have been in one

29 Ulp. D. 45, 1, 1, 6; Gai. Ill, 93; Inst. Ill, 15, 1. Thus, in developed law there was no magic in the use of particular words. As to the use of "Poenum . . . vel Assynum . . .

lingua" cf. Riccobono/Kerr Wylic/Bcinart, pp. 39 sq. ^° Ven. D. 45, 1, 137 pr.

" "Arma virumque cano" (Aeneis, Lib. I, 1); cf. Flor. D. 45, 1, 65 pr.

32 D. 45, 1, 137 pr.: ". . . ceterum si post interrogationem aliud acceperit, nihil proderit, quamvis eadem die spopondisset."

"" Riccobono/Kerr Wylie/Beinart, pp. 35 sq.

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word. By the time of the later Republic, the promisor did not have to repeat everything said in the question. Throughout the classical period, however, he had to use the same verb as the stipulator. Simply to give a nod of assent was not sufficient; and that Ulpian should have allowed the answer "quid ni" is not credible at all.34 It was only later that the formal correspondence came to be watered down to that extent. Also, of course, the promisor was not allowed to change the terms of the contract, even though he might have used the correct verb; therefore, if the question had been "intra calendas quintas dabis?", the answer "dabo idibus"35 was no good. Similarly, the promisor could not introduce a condition ("si illud factum erit, dabo") which had not been part of the question ("dabis?"). But what if the stipulator had asked for the delivery of Pamphilus and had received the answer "Pamphilum et Stichum dabo"? Strictly speaking, question and answer did not correspond. Yet, to regard the whole transaction as invalid seemed to be unduly strict, even to the classical lawyers. After all, as far as Pamphilus was concerned, there had been both question and answer. Thus, by way of fiction, the one stipulation was seen as two separate stipulations, the one referring to Pamphilus and the other to Stichus. This way of looking at things was summed up in the rule "tot stipulationes quot res"36—in the law of stipulations, it is to be assumed that as many stipulations have been concluded as there are objects involved. Therefore, whilst the transaction regarding Stichus failed owing to the lack of a question, there was a valid stipulation with regard to Pamphilus.37 It is tempting to apply a similar type of reasoning where the discrepancy between question and answer related not to the number of objects involved but to a sum of money:

"Si stipulanti mihi 'decern' ru 'viginti' respondeas, non esse contractam Obligationen! nisi in decern constat, ex contrario quoque si me 'viginti' interrogante tu 'decern' respondeas, obligatio nisi in decern non erit contracta: licet enim oportet congruere summam, attamen manifestissimum est viginti et decern inesse."38

The argument is here not "tot stipulationes quot res", but "in maiore minus inest", a rather plausible maxim which we come across repeatedly in the Digest.39 Whether it was applied in classical law in a

34 D. 45, 1, 1, 2: "Si quis ka interroget 'dabis?' respondent 'quid ni?' et is utiquein ea causa

est, ut obligetLir: contra si sine verbis adnuisset." 3:1 Cf. the example given in Ulp. D. 45, 1, 1, 3.

36Ulp. D. 45. 1. 29 pr.; D. 45, 1, 86; Paul. D. 45. 1, 140 pr.; cf. Schmidlm, Rechtsregeln, pp 73 sq.

Ulp. D. 45, 1, 1, 5: ". . . Scichi adiectionem pro supervacuo habendam puto: . . . duae sunt quodammodo stipulationes, uni utilis, alia inutilis, neque vitiatur utilis per hanc

inutilem."

ie Ulp. D. 45, 1, 1, 4.

313 Cf., for example, Wunner, Contractus, pp. 204 sq.; Hans Josef Wieling, Testamentsauslegung im romischen Recht (1972), pp. 92 sq., 125 sq., 266. For details of the application and significance of this maxim cf., in particular, Ralph Backhaus, "In maiore minus inest", (1983) 100 ZSS 136 sqq.

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case such as this is, however, extremely doubtful; for, in contrast to the previous example, where Pamphilus was mentioned in both question and answer, there is no longer any formal correspondence where the question is for ten and the reply for twenty, or vice versa; on the other hand, there is, however, substantive correspondence concerning part of the performance. "Nisi in decern" and the whole passage from "licet" to "inesse" may well have been interpolated;40 however, one cannot exclude the possibility that our text represents a view already held in late classical jurisprudence.41

4.Excursus: utile per inutile non vitiatur

(a)Partial invalidity in Roman law

It is convenient, at this point, to pause for a little while and to consider the concluding phrase of Ulp. D. 45, 1, 1, 5: "neque vitiatur utilis per hanc inutilem." Innocuous and insignificant as it might look, this little sentence certainly made history. It addresses the question whether the one stipulation ("Pamphilum dari spondes?"—"Spondeo"), in itself valid, might not have to be regarded as invalid because the other one (to which there is only the answer: "Stichum dari spondeo") is invalid. Both stipulations, as will be remembered, were not only part and parcel of a single transaction, but had in actual fact been drawn together in one single act. Thus, one could have argued that invalidity of part of the act leads to invalidity of the whole transaction. This, however, is not the answer given by Ulpianus. The valid stipulation, in his view, remains unaffected by the invalidity of part of the transaction. One must be cautious not to take this (as was indeed done in later ages) as the basis for a hard-and-fast rule governing the question of partial invalidity of a legal transaction; Ulpian's comment relates to this one specific case only ("hanc inutilem"). While, therefore, it would not be true to say that the whole idea of partial invalidity is of post-classical origin,42 it would be equally incorrect to assume that the classical lawyers had pinpointed the problem of partial invalidity as such and subjected the various cases to a general rule. Rather, they tackled the cases as they arose, adapting the result and reasoning to the individual circumstances.43 No abstraction was attempted. We do, however, find a tendency to uphold the transaction without its invalid part, wherever possible. The Digest preserves a variety of examples: a piece of land has been sold, but it transpires that the parties failed to reach agreement with regard to a slave who was to be transferred as part of the

40	Cf. e. g. Gai. Ill, 102; Giovanni Criscuoli, La nuilita parziale del negozio giuridico (1959),
pp. 27 sq.
41	Cf. e . g. P a ul K re tsc h m a r, "K riti k de r I nte r pol atio n c nk ritik ", ( 1 93 9) 59 ZS S 18 6 s q.
42	This is the vie w, for instance, of Be tti, Diritto Ro mano, pp. 333 sq.
43	Cf. Hans He rmann Se ile r, "Utile per inutile non vitiatur", in: Festsch rift fur Max Ka ser

(1976), pp. 127 sqq.

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76	The Law of Obligations

accessories;44 a clause has been added in a contract of loan for use exempting the borrower from liability for dolus;45 the name of one of the heirs in a will has been struck out;46 a promise has been given, by way of stipulatio, to pay a certain sum to the stipulator and to a third party.47 In all these cases, the invalidity of part of the transaction, either explicitly or implicitly, was held not to affect the whole transaction.48 Where, on the other hand, partial invalidity would clash with overriding policy considerations (as, for instance, that the parties strike their bargain themselves and that arbitrary—judicial—intervention into the terms of the transaction be avoided), thejurists did not hesitate to opt for total invalidity.49

(b) Generalization ofUlp. D. 45, 1, i, 5

From the Middle Ages onwards, however, lawyers latched on to D. 45, 1,1, 5 and generalized Ulpian's phrase at the end ofthat fragment. The rule of "utile per inutile non vitiatur" became part of the ius commune and dominated the discussion of partial invalidity50 from the time of the gloss51 down to the pandectists.52 Taken as a general rule, however, and not only as a guideline or presumption, it is apparent that "utile per inutile non vitiatur" inevitably leads to many unsatisfactory results, for instance in cases where the invalid part constitutes a major component of the transaction.

Attempts were not wanting to water down the rule in order to achieve greater flexibility. Thus, on the basis of Paul. D. 50, 17, 129, 1 ("Cum principalis causa non consistit, ne ea quidem quae sequuntur locum habent") and Paul. D. 50, 17, 178 ("Cum principalis causa non consistat, plerumque ne ea quidem quae sequuntur locum habent") attempts were made to establish some sort of counter-rule.53 In particular, however, the intention of the parties to the transaction came

44Paul. D. 18, 1, 34 pr.: "Si in emptione fundi dictum sit accedere Stichum servum neque intellegatur, quis ex pluribus accesserit, cum de alio emptor, de alio venditor senserit, nihilo minus fundi venditionem valerc constat."

45Paul. D. 13, 6, 17 pr.: "In commodato haec pactio, ne dolus praestetur, rata non est."

46Ulp. D. 28, 4, 2: "Cancellaverat quis testamentum vel induxerat et si propter unum heredem facere dixerat: id postea testamentum signatum est. quaerebatur de viribus testameiiti deque portione cius, propter quern se cancellasse dixerat. dicebam, si quidem unius ex heredibus nomen mduxerit, sine dubio ceteram partem testamenti valere et ipsi soli denegari actiones. . . ."

4Gai, III. 103; the second part of this stipulation infringes the rule "alten stipulari nemo

potest." Cf. supra, pp. 34 sqq. In the present context it is of interest to note that neither the Proculiani nor the Sabmiani advocated invalidity of the whole promise.

48For further discussion, see Seiler, Festschrift Kaser, pp. 128 sqq.

49Cf., for example, Marci. D. 18, 1, 44, as discussed by Seiler, Festschrift Kaser, pp. 130 sq.

50 Criscuoli, op. ci t. , note 40, pp. 49 sqq.. Theo Mayer-Maly, "Uber die Teilnichtigkeit", in: Privatrechtliche Beitrage, Gedenkschrift Franz Gschnitzer (1969), pp. 281 sq.

51Accursius, gl. Per hanc inutilem, ad. D. 45, 1, 1, 5.

52Cf. e.g. Dernburg, Pandekten, vol. I, § 124, 3.

53Cf. Puchta, Pandekten, % 67.

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Stipulatio

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to be emphasized;54 and it is this recourse to the fundamental freedom of the individuals to regulate their own affairs that influenced the modern codifications.55 Utile per inutile non vitiatur was therefore reduced to a presumption operating only where it cannot be ascertained what the parties had envisaged, in the event of part of their transaction turning out to be invalid.56 Some codifications, amongst them the BGB, moved even further away from Roman law and reversed the presumption:57 utile per inutile vitiatur, unless it may be assumed, in the words of the BGB, "that [the transaction] would have been entered into even if the void part had been omitted".58 But in most cases it is very difficult, if not impossible, to determine what the parties would have done had they known that part of their transaction was invalid: parties normally do not consider this eventuality at the time of entering into the contract. Thus, the real will of the parties is usually replaced by an enquiry into their "hypothetical will",59 i.e. by an evaluation of interests according to the standard of the reasonable man. But that, in the final analysis, makes the subsidiary presumption (be it utile per inutile non vitiatur or utile per inutile vitiatur) rather superfluous. Under the guise of the hypothetical will, the courts have thus acquired, once again, the far-reaching discretion of the Roman jurists to find suitable solutions to each individual case in which the question of partial invalidity arises.60 As a result, the above-mentioned rules of the European codifications have been characterized as relics from past epochs, which attempted, on the basis of a misconceived Roman tradition, to lay down and settle the consequences of partial invalidity in a general legal rule.61

(c) Severability

Surprisingly, in South African law, neither utile per inutile non vitiatur nor the Roman sources seem to have influenced the discussion. Instead, the courts have received English law in this regard.62 There the question has always been whether the unobjectionable parts of a contract may be enforced and the objectionable disregarded as "severed". As far as such severance is concerned, the courts seem to

54Cf. Windscheid/Kipp, § 82, n. 12.

55For a comparative analysis, see Alexander Ligeropoulos, "Teilnichtigkeit des

Rechtsgeschafts unter Ausschluss der Gesamtnichtigkeit", (1971) 24 RHDI 1 sqq.

ав Cf. e.g. art. 20 II OR; art. 1419 II codice civile (on which, see Criscuoli, op. cit., note

40, pp. 59 sqq.).

f Cf. art. 1172 code civil; Art. 181 Greek Civil Code.

58 § 139 BGB. But see, more recently, § 6 I ABGB. dealing with partially invalid standard contract terms. Here the German legislator has returned to utile per inutile non vitiatur.

5'' Mayer-Maly, in: Munchener Kommentar, vol. I (2nd ed., 1984), § 139, nn. 24 sqq.

ьп The German courts use this discretion to avoid invalidity of the whole transaction to a far greater extent than envisaged by the legislator. Thus, one might ask whether the presumption of utile per inutile vitiatur still reflects the practice of the courts.

61 Seiler, Festschrift Kaser, p. 147; ct'. also Honsell/Mayer-Maly/Selb, p. 116.

('2 Cf. Christie, Contract, pp. 360 sqq.. 379 sqq.; Wessels, Contract, vol. I, nn. 605 sqq.

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have been guided by two basic principles,63 namely that the courts must not make a new contract for the parties and that they will sever the unenforceable parts of a contract only if it is in accordance with public policy to do so.64 As far as the first of these principles is concerned, English courts have employed the "blue-pencil test": severance will only be effected if the illegal part can be crossed out by running a "blue pencil" through it (that is, where the courts do not have to rewrite the existing contract).65 Such a guideline would also be of use in German law where the courts display an increasing tendency to reduce exorbitant terms of a contract to an acceptable level instead of declaring the contract null and void.66 One of the policy considerations militating against such a tendency has been spelt out—with regard to the practically very important employer and employee covenants in restraint of trade—in the following terms:

"It would in ray opinion be pessimi exempli if, when an employer had exacted a covenant deliberately framed in unreasonably wide terms, the courts were to come to his assistance and, by applying their ingenuity and knowledge of the law, carve out of this void covenant the maximum of what he might validly have required. It must be remembered that the real sanction at the back of these covenants is the terror and expense of litigation, in which the servant is usually at a great disadvantage, in view of the longer purse of his master."117

5. The atrophy of the classical stipulation

(a) The use of documents (with evidentiary function)

Back to the stipulations! For as long as Rome and Roman tradition were dominant in the application and development of the law, the basic structure of the stipulation remained unchanged, even though, as we have seen, various concessions were made to facilitate its use in commercial practice. The degeneration (or atrophy) of the classical

('3 Cf. Chitty on Contracts, vol. I, nn. 1181 sqq. As is pointed out in n. 1183, many authorities cannot easily be reconciled with these principles. The confusion in the law of severance (which does not really commend itself for reception purposes) seems to be attributable on the one hand to the fact that the courts have traditionally distinguished between promises rendered illegal by statute and promises illegal at common law ("The statute is like a tyrant; when he comes he makes all void; but the common law is like a nursing father, makes void only that part where the fault is and preserves the rest": see Twisden J, in Maleverer v. Redshaw (1669) 1 Mod. Rep. 35 sq.); on the other hand, it is attributable to the tendency of certain tests "to crystallize into a firm rule of law, divorced from the underlying considerations of public policy which originally inspired [them]"—cf. esp. the rule that a consideration which is partly illegal can never be severed: Norman S. Marsh, "The Severance of Illegality in Contract'', (1948) 64 LQR 230 sqq. (231), 347 sqq.

(j4 Thus, English law places less emphasis on the (presumed or real) intention of the parties: cf. Marsh, (1948) 64 LQR 230 sqq.

65Cf. e.g. Attwood v. Lament [1920] 3 KB 571 (CA) at 577-8.

66The problem of quantitative severability of contracts: cf. Zimmermann. Moderations recht, pp. 19 sqq. and passim; contra: Johannes Hager, Gesetzesund sittenkonforme Auslegung und Aufrechterhaltung von Rechtsgeschaften (1983); Alfons Burge, Rechtsdogmatik und Wirtschaft—Das richterliche Moderationsrecht beim sittenwidrigen Rechtsgeschaft im Rechtsver- qleich—Bundesrepublik Deutschland—Schweiz—Osterreich—Frankreich (1987).

67Lord Moulton, in Mason v. Provident Clothing and Supply Co. Ltd. [1913] AC 724 (HL)

at 745.

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stipulation,68 in the course of which the oral formality gradually lost all significance, came about under the influence of commercial practice in the Hellenistic provinces. Even in classical Roman law already a document embodying the content of the stipulation was usually drawn up.69 Such a document had a purely evidentiary function and was neither required for the validity of the transaction nor could it replace the oral exchange of question and answer.70

Lay people tend to attach greater significance to written documents than these deserve from a legal point of view: that was probably as true in imperial Rome as it is today. Hence the belief started to gain ground that the recording of the transaction was essential for its validity.71 This belief was influenced by the obligatory effect of writing in the Hellenistic East and especially by the Greek practice of drawing up instruments of indebtedness72—instruments which could be enforced in Roman courts too.73 It was further supported by the practice of draftsmen and notaries to attach a stereotype "stipulatory clause" to their documents.74 If, for instance, we look through the Egyptian papyri, we find that after the enactment of the constitutio Antoniniana75 this clause (каі ет7"еріотті"9е ic со/лоХб-упста—interrogatus spopondit) became an essential element of the documentation of legal transactions,76 its purpose obviously being to render the obligation enforceable according to Roman law.77

68 The literature on this topic is abundant. The details of the development are controversial; see esp. (of the more recent literature) Kaser, RPr II, pp. 373 sqq.: Levy, Obligationenrecht, pp. 34 sqq.; Geoffrey MacCormack, "The Oral and Written Stipulation in the Institutes", in: Studies in Justinian's Institutes in memory ofJ.A.C. Thomas (1983), pp. 96 sqq.; Nicholas, (1953) 69 LQR 77 sqq., 233 sqq.; J.C. van Oven, "La stipulation a-t-elle degenere?", (1958) 26 TR 409 sqq.; Fritz Pringsheim, in: Gesammeitc Abhandlungen, vol. II (1961), pp. 194 sqq.; Riccobono/Kerr Wylie/Beinart, pp. 48 sqq., 55 sqq., 91 sqq.; Dieter Simon, Studien zur Praxis der Stipulationskiausel (1964), pp. 26 sqq.; Dietrich V. Simon,

Konstantinisches Kaiserrecht (1977), pp. 93 sqq.

69 Such cautio stipulatoria could contain all the elaborate details of the transaction which it would have been difficult to include m the oral question-and-answer form. To this document the parties could then simply refer in their stipulation ("Ea omnia, quae supra scripta sunt, dari?": Paul. D. 45. 1, 140 pr.; c(. also Paul. D. І7, 2, 71 pr.) and record the oral act in a stereotype clause appended to the cautio; cf. Ulp. D. 2, 14, 7, 12 (". . . novissima parte pactorum ita solet imeri 'rogavit Titius, spopondit Maevius' . . .").

70 Contra: Diosdi, pp. 51 sqq. 71 Cf. e.g. Gai. Ill, 134; Diosdi, pp. 62 sq.

72Cf. Cicero (Topica, XXVI—96), who took stipulations to be res quae ex scripto aguntur.

73Kaser, RPr II, pp. 374 sq.

74Cf. supra, note 69, and especially Pringsheim, op. cit., note 68, pp. 194 sqq.; Dieter

Simon, op. cit., note 68, pp. 1 sqq.

7r> The importance ot the constitutio Antoniniana for the degeneration of the stipulation is

emphasized by Schulz (CRL, p. 476) in the following words: "With [this enactment] the stipulation was doomed. It was too closely connected with Roman customs and the peculiar Roman temperament and too alien to Eastern legal thought to be fully understood and properly applied by the vast mass of new Roman citizens."

It was appended in a curiously overcautious and tremulous way, not uncommon for notaries, to all sorts of contracts and even to wills or documents relating to a release from slavery.

77 However, during the time up to Justinian, there seems to have been a shift from

"promissorische Sanktionsklausel" to "konfirmatorische SanktionsklauseV; see the detailed analysis of the sources by Dieter Simon, op. cit., note 68, pp. 41 sqq.

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80	The Law of Obligations

(b) Gradual conversion of the stipulation into a written contract

Nevertheless, the late classical lawyers still maintained the oral nature of the stipulation, even if increasingly as a matter of theory. If, at the end of the document, it had been indicated that question and answer had been properly put,78 there was no reason for the courts not to accept this as true, unless the contrary was positively proven. The document thus provided the basis for a (factual) presumption that the oral formality had been complied with. Papinian (himself probably born in the East) went even further: "Licet epistulae, quam libello inseruisti, additum non sit stipulatum esse eum cui cavcbatur, tarnen, si res inter praesentes gesta est, credendum est praecedcnte stipulatione vocem spondentis secutam."79 Here the letter did not even mention that oral question and answer had been given. Yet, as long as the transaction had taken place inter praesentes, on the basis of the promise being put down in writing, it was accepted that a stipulation had been concluded! Thus, in actual practice, the oral formality was increasingly neglected and the stipulation was largely converted into a promise in writing.80 Of course, it was still open to the debtor to prove that the formal oral act had not in fact taken place; but apart from showing that it could not have taken place (e.g. because one of the parties was not present at the alleged time and place), such proof of the negative is notoriously difficult.

This fundamental structural change in the nature of the stipulation was formally recognized in the fifth century. Even though his words leave some room for interpretation, it is today widely accepted that Emperor Leo dispensed with the old Roman question-and-answer ritual which by that time must have seemed somewhat atavistic: "Omnes stipulationes, etiamsi non sollemnibus vel directis, sed quibuscumque verbis pro consensu contrahentium compositae sint, legibus cognitae suam habeant firmitatem."81 The words no longer

78Cf. e.g. Ulp. D. 2, 14, 7, 12.

79C. 8, 37, 1 (Sev. et Ant.). This rescript is dated April 200. At this time, as Tony Honore

has argued, Papinian was secretary a libellis: cf. Emperors and Lawyers (1981), pp. 56 sqq. Ж) Cf. further, for example, Paul. D. 24, 1, 57; 45, 1, 134, 2.

Ml C. 8, 37, 10 (a. 472). Interpretation and evaluation of this Constitution provide a good

example of the disputes surrounding the later history of the Roman stipulation. On the onehand, it is held that late classical law had already gone the whole way from verba to scriptura, so that Leo's Constitution merely (re-)states what was already recognized (cf. e.g. Jors/Kunkel/Wenger, p. 98). On the other hand, it is suggested that, up to the time of Leo, the formality of oral question and answer reigned supreme. Leo dispensed with the necessity of formal question and answer, but did not change the nature of the stipulation as an oral act. Only Justinian replaced the oral act by the written document (cf. e.g. Riccobono/Kerr Wylie/Beinart, pp. 51 sqq.). Others, again, see this transformation as having taken place with Leo's Constitution; according to them, each written contract was to be taken as a stipulation (e.g. Levy, Obligationenrecht, p. 39). Nicholas, (1953) 69 LQR 63 sqq., 233 sqq. argues that even Leo still retained the form of (oral) question and answer; the purpose of C. 8, 37, 10 was only to do away with what he believes to have been the numerus clausus of the formal words (cf. Gai. Ill, 92 and supra, p. 72) and to allow the use of other than these

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