Stipulatio
(1) Nature and Development
A stipulatio was a contract made by the exchange of formal words. It was ‘a verbal expression, by which he who is asked to give or to do something answers that he will do what has been asked'.[2049] A stipulatio was thus a unilateral contract: it conÂsisted in one party, the promisor, agreeing to be bound to do or give something in favour of the other, known as the stipulator or promisee.
If it was desired that both parties make some kind of performance, this could be done by having each party enter into a separate stipulatio, or else by making the stipulatio conditional on performance by the other party. A stipulatio was stricti iuris·, and did not even have to state the basis of the obligation that was undertaken. It was enough, for example, for the stipulatio to state that the promisor was undertaking to pay a particular sum of money, without stating why he or she was doing so. As we have seen in Chapter 17,[2050] the stricti iuris nature of stipulatio meant that, originally, it was no defence that the promisor had (for example) been fraudulently induced to enter into the stipulatio.The stipulatio was unusual among Roman contracts, in not being defined by its subject matter. All of the other contracts, with one exception,[2051] applied to specific types of transaction, such as sale, hire or loan. A stipulatio, by contrast, could be used for any kind of agreement that could lawfully be made. Indeed, the use of the stipulatio went beyond voluntary agreements: Pomponius identifies the catÂegories of judicial stipulatio and praetorian stipulatio, which were used in cases where a judge or magistrate could require a party to legal proceedings to give an undertaking in this form.[2052]
If stipulatio was capable of such general use, the question may reasonably be asked why the other forms of contract were necessary.
How is it that the Romans did not manage to develop a general law of contract, based on stipulatio? The answer seems to lie in the high level of formality of the stipulatio. Although this was mitigated to some extent in practice in later law, strictly speaking the stipulaÂtio always had to comply with very formal requirements for its creation. Rather than simply relaxing the formalities of stipulatio, the Romans developed the other contracts to deal with cases where those formalities were inconvenient or were simply not used.(2) Requirements for Formation
A stipulatio was constituted by question and answer. For example, if the obligation to be created was to pay a sum of money, the stipulator might say: ‘Do you promÂise to pay me 1,000 sesterces?' The promisor would then reply: ‘I promise.' This had to be done as one continuous process, with no other business intervening.[2053] Both parties had to be physically present.[2054] The stipulatio could be conditional or contain provision as to the date on which performance was due.[2055]
Originally stipulatio was confined to Roman citizens, and for ‘promise' the speÂcific verb spondere, which had overtones of religious oath-making, had to be used. Even the verb promittere, which also meant ‘to promise', would not be enough. However, in the later Republic, with the Romans falling away from traditional religious practices and with increasing contact with non-Romans, this strictness was relaxed.[2056] Although spondere remained limited to use by Romans,[2057] other formuÂlations became available both to them and to others. Gaius mentions a number, such as: ‘Will you give...?', ‘I will give'; and ‘Will you do...?', ‘I will do.'[2058] Greek could be used as long as it was understood by both parties.[2059] Whether languages other than Latin or Greek could be used seems to have been disputed by the clasÂsical jurists,[2060] butJustinian is clear that any language understood by both parties could be used.[2061] The answer had to meet the question exactly.
Therefore, if for example a question was met with a conditional answer, no contract would be conÂcluded.[2062] It is doubtful, though, whether the question and answer had to use the same verb, or whether (for example) a question in the form ‘Will you do...?' could be validly met with the reply ‘I promise.' Ulpian's view that the question and answer could be in different languages appears to imply that the question and answer did not have to match to this extent.[2063] A pronouncement of the emperor Leo, dated AD 472, could be interpreted as going further than this: ‘All stipulations recognised by the law have their own force, even if not composed in solemn or direct words, from any words that express the parties' agreement.'[2064] This could be seen as abolishing the requirement for formal question and answer. On that view,Justinian's account, which stresses the need for question and answer, would represent a conscious reversal of the position in Leo's pronouncement. That, howÂever, is not the more common interpretation.[2065] Probably Leo's pronouncement should be seen rather as essentially declaratory, simply confirming that there was no requirement to use one of a specific list of verbs and there was no need for the two parties to use the same verb.(3) Stipulatio and Writing
As we have seen, stipulatio was constituted by spoken words. However, in the ancient world as in the modern, it was common to record important transactions in writing even when that was not a formal requirement. The purpose of recordÂing a stipulatio in writing was simply to preserve evidence of its terms and of the fact it had been entered into. Strictly speaking, if the words were not spoken, there was no contract. In practice, though, a party who could produce a document purportedly recording a stipulatio would be in a strong position if the matter was disputed.[2066] For example, in an imperial decision of AD 200 it was held that, where a document stated that a stipulatio had been made, it was to be assumed to have been made in the appropriate oral form.[2067] Justinian went even further.
Preserving the rule that the making of the stipulatio required the presence of the parties, he held that a statement that the parties were together created a presumption that could only be rebutted by proving that at least one of the parties was absent for the whole day that the document was made.[2068]Did the written document have any requirements of form? On one view, it was always necessary to state that the parties were present. In the classical law, according to this view, it was necessary to record also the exchange of a question and answer. In Justinian’s law, this view goes on, it was enough just to state that a promise had been made, from which it was inferred that this had been made in response to a question in the appropriate form.[2069] Arguing this way, though, risks losing sight of the fact that the document was strictly evidentiary in nature. Classical Roman law did not have a well-developed law of evidence, and what counted as evidence of a fact was simply whatever would help to persuade a judge of that fact. On this approach, any document that could be interpreted as supporting an argument that a stipulatio had been made could be seen as eviÂdence of the stipulatio, even if there was no explicit statement that the parties were together and that the question and answer were given. The important thing was that the judge was satisfied of those matters, not that they were stated in the document. As the argument has been stated:
If documentary evidence is admitted, as it obviously was, all that can be demanded is that the document should be clearly intended as evidence of a stipulation, and there should be no evidence inconsistent with there having been a stipulation.[2070]
This area overlaps withJustinian’s treatment of obligations created in writing, on which see Chapter 21.[2071]
(4) Enforcement
The method of enforcement of a stipulatio varied depending on what had been promised.[2072] If the promisor had promised to give a specific thing or a specific sum of money, the form of action called the condictio[2073] was used. This had the advantage that it was not necessary for the pursuer to specify the basis on which the money or property was due; it was enough to state that it was due. In other cases, a specific action for enforcing a stipulatio would be used, the actio ex stipulatu.