OBLIGATIONS ARISING BY WORDS
The category of obligations arising by words was an old one, existent already by the time of the Twelve Tables. The main example was the contract called stipulatio.
A stipulatio was constituted by a formal exchange of words, whereby one party, the promisor, would promise to perform some action.
What was required was for the promisee to ask the promisor whether he promised to perform the action. This would be done by asking a question in the form “spondesne... ?” (“Do you promise... ?”), to which the reply would be “spondeo” (“I promise”). As the formation of the contract was dependent on spoken words, the parties had to be present. Originally, the words given here, spondesne and spondeo, had to be used or there would be no valid stipulatio. Even other words with the same meaning were not sufficient. However, through time this requirement was relaxed and other words and other languages were permitted. The question and answer also had to follow the form given here. The answer was a simple acceptance of what was contained in the question, and so could not introduce conditions. Any condition would have to be included in the question, which could therefore be quite complex.What is notable about stipulatio as compared with other forms of contract is its possible content. While the other recognised contracts deal with specific types of transaction, a stipulatio could relate to any type of transaction that was not illegal, impossible or immoral. Stipulationes were therefore used in a wide variety of contexts. We have already seen that they could be used for novation, but there were many other possibilities.
The wide scope of the contract of stipulatio raises the question of its potential to form the basis of a general law of contract. It is not clear the extent to which this had been achieved by Justinian’s time, although there was certainly movement in that direction. In practice, the agreement would often be recorded in writing, that writing taking for practical purposes the place of the spoken agreement. It might be said, therefore, that there was a general law of contract so far as written contracts were concerned. With respect to oral contracts, however, the formality of the stipulatio would hamper developments of that type.