Literal Contracts (Obligationes Litteris)

Alongside the categories of real, verbal and consensual contracts, the institu­tional scheme also included a fourth category. This was the category of contracts created in writing, often called literal contracts or literal obligations, from the Latin term obligationes litteris.

As originally understood, this term did not refer to written contracts gener­ally, in which writing was simply evidence of the terms of the parties’ agreement rather than being constitutive of the contract. As long as there has been writing, it has been common for contracting parties to record important agreements in writing, to minimise the risk of later disputes. In that case, though, the writing has purely evidential purposes. Suppose that I agree to sell you a large area of land or a shipment of wine. If we are sensible, for such a contract we will put our agreement in writing. However, that is not essential to the contract, which will be just as enforceable if evidenced in some other way.^[2326]

The true literal contract was different, in that it was the writing in the cor­rect form that actually created the obligation.^[2327] Literal contracts arose from the custom of a paterfamilias to record financial transactions in a household accounts book. If this was done in the correct form, and with the consent of the debtor, it was sufficient to create an obligation that there had been made an entry in the accounts book to the effect that the debtor was indebted to the paterfamilias. The contract was unilateral, as obligations were only imposed on one party. It seems to have been commonly used for the purposes of novation.^[2328] This was very useful to the creditor as this form of contract was stricti iuris·, with the result that it was not necessary for the creditor to prove the basis of the obligation.

Gaius deals with this matter very briefly,^{[2329] [2330] and much is uncertain about the pre­cise details of the operation of this contract. Literal contracts were becoming obso­lete in Gaius' day, and had long since become so byJustinian's time. A place is kept for literal contracts inJustinian's Institutes^ but what is considered is something quite different, namely the recording in writing of a debt's existence. In principle, the person who had made a written statement that he or she owed a debt ought to have been able to avoid liability by showing that no valid contract in fact existed. Justin­ian held that such an argument could only be made within two years (reduced from the five years of previous imperial pronouncements), introducing an irrebuttable presumption that there was a valid obligation if it had not been challenged during this period. In effect, this introduced a new form of contract created in writing, but it was one with no historical connection to the original literal contract.[2331]}

C.