2 04obligation stipulation - uniwersytet...

OBLIGATIONSVERBAL CONTRACTS

Obligations: The Sources

G. 3.88 First let us consider those that arise from contract. Of such there four kinds: for an obligation by contract arises either by a thing (re), by words (verbis), by letters (litteris), or by consent (consensu).

The verbal contract

The rituality of stipulation The Form

Advantages/Disadvantages Certain/Uncertain

Causality and Stipulation Causality vs. Abstraction

92. An obligation is verbally contracted by question and answer, as for instance: DARI SPONDES? SPONDEO!; DABIS? DABO!; PROMITTIS? PROMITTO!; FIDEPROMITTIS? FIDE PROMITTO!; FIDEIUBES? FIDEIUBEO!; FACIES? FACIAM! "Do you solemnly agree to give it to me?" "I do solemnly agree." "Will you give it?" "I will give it." "Do you promise?" "I do promise." "Do you pledge your faith?" "I do pledge my faith." "Do you guarantee?" "I do guarantee." "Will you do this?" "I will do it."93. The verbal obligation contracted by the expressions, "Do you solemnly agree to give?" "I do solemnly agree to give," is peculiar to Roman citizens; the others belong to the Law of Nations, and therefore they are valid among all men, whether they are Roman citizens or aliens. And even if they are uttered in the Greek language they are still valid, for instance: δώσεις ; δώσω· ὁμολογεῖς ; ὁμολογῶ· πίστει κελεύεις ; πίστει κελεύω· ποιήσεις ; ποιήσω, so far as Roman citizens are concerned, if they understand Greek; and on the other hand, although they may be stated in Latin, they will, nevertheless, be binding on foreigners, provided they are familiar with the Latin language.

The ritual and its disadvantages


Is a simple agreement enough to create an obligation?



What about a written document?




Only if their content is the typical of one of the consensual contracts (sale, hire, mandate, partnership); otherwise, nudum pactum obligationem non parit (a mere pact does not bear an obligation), so a ritual is needed:





'Decem mihi dari spondes?' spondeo





'Decem mihi dari spondes?' spondeo

Disadvantages?

The ritual and its disadvantagesWhat if the stipulation is more complicated?


cautio usufructuaria, cautio rem pupilli salvam fore



What if the parties live in different cities?




Writing?




Writing?

it can be added to the oral ritual, but not replace it: not ‘constitutive’.




Writing?


How to contract an obligation inter absentes?




Writing?


How to contract an obligation inter absentes?

Subjects in potestate

The rational behind the ritual

The rational behind the ritualCould one of the parties argue that he had really not agreed? That his intention in fact was not entering the contract?

The agreement is made indisputable. It prevents a possible lack of consideration.



Could one argue that ten had been promised only on the assumption that a certain service be provided in turn (CONSIDERATION)?

The content is fixed indisputably, and separated from the previous negotiations





Comparison to the modern contractual system





Comparison to the modern contractual systemWhy not an unilateral form? I promise...

VERBAL CONTRACTS APPLICATION

Creation of an abstract obligation

Versatility

esp. to guarantee specified (and otherwise non executable performance):

cautio usufructuaria, penal stipulation

Collateral (personal guarantee)

VERBAL CONTRACT as a collateral


SPONSIO FIDEPROMISSIO FIDEIUSSIO



item spondes? spodeo!

item fide promittis?fide promitto!

item fide iubes?fideiubeo!






citizens everyone






citizens everyone

only verbal contracts all obligations (inc. natural)






citizens everyone

only verbal contracts all obligations (inc. natural)

extinguished by death(or after two years by the virtue of Lex Furia) inheritable

Certum / Incertum

Certum / Incertum (a) Do you promise 10.000 HS? I do  

(b) Do you promise me damages if your wall falls over my property?’   (c) Do you promise to build for me a house on the Cornelian estate?



Differences?



Differences?

(a) dare certum



Differences?

(a) dare certum(b) dare incertum



Differences?

(a) dare certum(b) dare incertum(c) facere



Differences?


Divisibility?



Differences?


Divisibility?

(a-b) divisible, (c) indivisible. Consequences?



Differences?


Divisibility?

(a-b) divisible, (c) indivisible. Consequences?

Further: (a) claimed by actio certi (condictio),   (b-c) by actio (incerta) ex stipulatu.

Certum / Incertum

Actio certi (condictio certae creditae pecuniae: the same as in case of a loan for consumption (mutuum) and literal contract

Actio incerti (actio ex stipulatu)

both STRICTI IURIS!

Certum Incertum

Certum Incertum

If it appears that A ought to give [on the basis of civil law] 10 to B...

As A has promised sth indeterminate to B, whatever for that reason A ought to give or perform in favour of B [on the basis of civil law]…

Certum Incertum



... let the judge condemn ...

Certum Incertum




A in favour of B for 10 .... for whatever shall be the case-matter.

Certum Incertum




A in favour of B for 10 .... for whatever shall be the case-matter.

If it does not appear, let the judge absolve

Certum Incertum

The role of the judgeIncertum: litis aestimatio on the basis of the interestCertum: on the basis of the true price.

pluris petitio;

Do you promise...... ten modii of best quality African

wheat?

... ten modii of African wheat?

...African wheat?

... the wine you keep in your cellar?

... to give me your copy of Julian's Digesta?

... to give back the book you have borrowed from me?

... to give me a Gaulish gladiator slave?

... 1000 or the Cornelian estate?

... to give me right of way on the Cornelian estate?

... not to prevent my crossing through the Cornelian estate?

... the usufruct over the Cornelian estate?

... your share of ownership on Stichus?

... an interest rate of 8 % on the money you have borrowed?

Condicio and dies

Condicio and dies

Titius: Do you promise to give me Stichus on the next kalends of January? If you don’t, do you promise to give me 1000? - Caius: I do

Condicio and dies


Can Titius claim anything before the kalends of January?

Condicio and dies



If Caius gives the slave before the kalends of January, can he claim him back? What, If he gives the 1000?

Condicio and dies




'on the next kalends of January', dies; 'if you don't (fulfil the obligation)' condicio.

Condicio and dies





Dies suspends the action, condicio the obligation itself. What kind of stipulatio sub condicione is the second one?

Condicio and dies





Dies suspends the action, condicio the obligation itself. What kind of stipulatio sub condicione is the second one?

Stipulatio poenae. If Stichus is not given in time, can Titius claim the slave or only

Stipulation and its causeBefore leaving Rome for a long journey, Titius, diffident of his own slaves, entrusts his most valuable possessions to his neighbour Caius.

In the political turmoil of the late Republic, Titius and Caius fall in enemy sides. Caius, his own possessions having been confiscated by the enemy, now refuses to give back Titius' unless a high amount of money is paid.

Caius: "Do you promise to give me 200.000 HS?" Titius: "I do promise".

Is this stipulation valid?





Caius has action against Titius. What can Titius do?





Caius has action against Titius. What can Titius do?The praetor helps by means of exceptio doli. How does this work?





Caius has action against Titius. What can Titius do?The praetor helps by means of exceptio doli. How does this work?The defendant is absolved if he proves the unlawfulness of the cause





Caius has action against Titius. What can Titius do?The praetor helps by means of exceptio doli. How does this work?The defendant is absolved if he proves the unlawfulness of the causeThe stipulation is made useless iure praetorio. What was the technical reason?

CAIUS AQUILIUS IUDEX ESTO. SI PARET NUMERIUM NEGIDIUM AULO AGERIO DIES MILIA SESTERTIUM DARE OPORTERE, SI IN EA RE NIHILI DOLO MALO AULII AGERII FACTUM SIT NEQUE FIAT, QUA DE RE AGITUR, CAIUS AQUILIUS IUDEX NUMERIUM NEGIDIUM AULO AGERIO DIES MILIA SESTERIUM CONDAMNATO, SI NON PARET ABSOLVITO.

LET CAIUS AQUILIUS BE JUDGE. IF IT APPEARS THAT THE DEFENDANT OUGHT ON THE BASIS OF CIVIL LAW TO GIVE TO THE PLAINTIFF 200,000 HS, WHICH IS THE CASE-MATTER HERE, UNLESS ANYTHING HAS BEEN DONE OR IS DONE IN THIS CASE BY THE PLAINTIFF BY MEANS OF EVIL FRAUD, LET THE JUDGE CONDEMN THE DEFENDANT IN FAVOUR OF THE PLAINTIFF FOR 200,000IF IT DOES NOT APPEAR, LET HIM ABSOLVE.

Causality vs Abstraction

Causality vs AbstractionIf I take a book from my library and give it to you, does it become yours?


It depends on the cause, v. Commodatum (loan for use) vs. donation



Traditio = causal.



Traditio = causal.

If I mancipate an estate in your favour, does it become yours?



Traditio = causal.


Yes: the cause is not relevant here: one takes for granted that the ritual of mancipatio is performed only when there is intention to transfer ownership. Ritual substitutes for cause



Traditio = causal.



Mancipatio = abstract.



Traditio = causal.



Mancipatio = abstract.

abstract acts tend to be ritual; causal acts, informal.

The difference in trial

The difference in trialI acquire a slave, he runs away back to the former owner, whom I sue. What do I need to

prove my ownership:


prove my ownership:

a) if based on traditio; b) if based on mancipatio?


prove my ownership:


(a) the traditio itself and its cause; (b) just the mancipatio


prove my ownership:



When our claim is based on an abstract act, we are favoured by a presumption: it is presumed that the act had in fact a cause and a licit one.


prove my ownership:




What if I (c) sue my debtor on the basis of a stipulatio? What do I need to prove?


prove my ownership:





Just the stipulatio itself. Does this mean that the cause is totally irrelevant?


prove my ownership:






No: the defendant can prove the cause unlawful or void, and thus get absolution.


prove my ownership:







(1) causal; (2) - (3) abstract. What's the technical difference between them?


prove my ownership:








in (3) the presumption of a licit cause can be destroyed by the defendant; in (2) it can't.


prove my ownership:








in (3) the presumption of a licit cause can be destroyed by the defendant; in (2) it can't.

(3) presumption iuris tantum (2) presumption iuris et de iure

Acts

Causal

'weakly' abstract

'strictly' abstract

In trial

The cause has to be proved

The cause is presumed iuris

tantum (rebuttable presumption

The cause  is presumed iuris et de

iure (conclusive/irrebuttable

presumption)

Acts

Causal

'weakly' abstract

'strictly' abstract

In trial






presumption)

traditio

Acts

Causal

'weakly' abstract

'strictly' abstract

In trial






presumption)

traditio

stipulatio

Acts

Causal

'weakly' abstract

'strictly' abstract

In trial






presumption)

traditio

stipulatio

mancipatio

A CaseAulus wanted to borrow money from Quintus. They agreed that the money would be paid in a week - once Aulus had finalised a transaction he was preparing. On the very same day to secure the future repayment of the loan Quintus asked Aulus Do you promise that 100 will be given to me? Aulus answered I do promise. They also made a document evidencing the transaction. A week after however Aulus’ transaction failed and so he did not come to Quintus to get the money as he did not need them anymore. When - after a few months the heirs of the recently deceased Quintus found the document they decided to claim the amount therein specified.

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