Summary
Summary Roman Law 271 Revision Notes
- Course
- Roman Law 271 (ROMANLAW271)
- Institution
- Stellenbosch University (SUN)
Extensive notes and summaries on the examinable material in Roman Law 271
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STIPULATIO – WATERING DOWN OR RELAXATION OF THE FORMAL REQUIREMENTS(Self-study – see also tutorial assignment 5)
Meeting the strict formalities of classical law could be problematic. The Roman Empire increased in size,
particularly after the expansion of citizenship (Constitutio Antoniniana 212 AD), it also became
commercially more sophisticated. The watering down was inevitable.
(i) Solemnitas – this was the first requirement to be watered down. The exact time of are uncertain, but
it was probably from the republican period and the early empire. The parties were no longer limited to
the verb spondere. They could use other verbs with the same meaning.
~ Different verbs could be use in the question and answer. For example – English equivalents: Do
you promise? I give you my word. Or, I will.
~ The parties could use different languages e.g. Greek or Latin.
~ The answer did not have to contain a verb. Do you promise to give me 10 coins? Of course!
EVENTUALLY
~ We get the Constitutio Leonina of 472 AD: C A6 37 10 (i.e. constitutio of Emperor Leo). The
constitutio determined that regardless of the words used, the stipulatio would be valid as long as
the intention of the parties was clear.
~ It possibly indicates a further relaxation: although not with formal words but with any words
whatsoever. However it is not clear exactly what was meant. It could even be that there no longer
had to be a question and answer. If this is true, one would not really need the specific contract
types. Anything could be a stipulatio. However, Justinian stuck to the fourfold classification.
(ii) Continuo actu / unitas actus
~ In the classical period one continuous action was required.
~ In the post-classical period this requirements was relaxed. From and interpolation of the texts of
Ulpian and Venuleius it appears that a pause was allowed for a “momentum naturae” (a party could
answer the call of nature; sneeze of possible even say a poem.) There are indication that eventually
as much as a day was allowed between the question and answer. However this is unclear.
(iii) Verbis
~ When Roman citizenship was considerably extended by the Constitution Antoniniana in 212 AD,
persons that initially fell or worked outside of the Empire followed the Greek practice of written
contracts. These contracts had strong evidentiary value. These contracts now had to be adapted
for Roman practice. The stipulatio was no also reduced to writing. People increasingly though of
the stipulation as a written contract.
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