Stipulatio

Stipulatio was the basic form of contract in Roman law. It was made in the format of question and answer.

In order for a contract to be valid, parties must have capacity: both intellectus ("understanding") and voluntas ("wish", "will"). Lunatics and infants lacked intellectus, and could not fully understand a legally binding contract, or understand it, and therefore could not legally agree to one. Slaves lacked voluntas and therefore could not contract. Although slaves could not be bound by a contract, they could contract to benefit their master, even without his permission, (because he would then be able to choose whether or not to enforce it or with his consent, might burden him, because he would provide the necessary voluntas. Wards and women could stipulate under their tutor's authority, and this was not needed if they benefited under the stipulation.

The orthodox argument is that intention was not an essential condition of Roman contract law, but an integral Byzantium interpolation. However, David Ibbetson, a British legal academic specializing in Roman law, has argued that the intention of a contracting party was necessary. D.50.27.48 argues that, in the context of divorce, what was said in anger would not bind unless it was accompanied by action, e. g. a wife saying she will walk out and then doing so. A madman could not stipulate because he lacked understanding. These texts combined suggest that some form of intention to be bound was required.

Agreement was essential to a valid contract under Roman law. Without a meeting of the minds, the contract was void. The result of this was that animus was needed from both parties, both in order to accept the burden and in order to accept the benefit of the contract. The texts cover two situations where agreement fails. Firstly, if someone stipulates for slave A and there are two slaves called A, which slave the stipulation is binding for depends on evidence extraneous to the verbal contract, for example, a hand is placed on the slave. Secondly, where a document has been used as evidence of a contract, but the document is ambiguous (which is where agreement is most important) the texts discuss two possible responses. This ambiguity may be resolved against the stipulator (the approach taken by Celsus and Ulpian), or the mistake may make the contract void (the approach taken by Venellius and Paul and followed in Justinian’s institutes).

A Roman contract had to be oral. Since the contract was oral, it could not be made by the deaf or dumb without a slave to act as their mouth or ear piece and could not be made from afar. D.45.1.1. pr, which appears to have been compressed, since the reasoning does not follow perfectly, says that there can only be a stipulation when parties speak, so the mute, deaf and dumb cannot stipulate, and someone who is not present cannot stipulate. However, a slave may stipulate for a deaf or dumb master. The Greeks, however, used purely written contracts, which clearly had some influence on Roman law, which did use writing. However, authors such as Zimmermann and Nicholas held that the oral contract remained crucial, and the documents merely supplemented the contract as evidence. In C.4.32.1 a question was sent to the emperor about a situation where a document witnesses a promise to pay back a loan but does not mention the requirement of interest, which was a part of the oral promise. The response is that the interest is still enforceable. This fits with D.50.17.92, which says a stipulation which is recorded wrongly is still valid. Also, D.2.14.7.12 is an example of a written stipulation, and it speaks in the past tense, that T had asked and M had promised, which again suggests that the written documents performed an evidential function. More often than not, by the Late Empire under Emperor Leo (which influenced his rescript), the oral stipulation was never in fact made; the documents recorded a non event. There is some dispute about whether or not the stipulatio degenerated and became a written contract. Barry Nicholas has argued that circa 140AD a written document became very strong evidence of an oral agreement, creating a presumption that an oral promise had been made, unless it could be proven that the parties had not met. By 201AD this is stated explicitly in the texts. This approach demonstrates an attempt by Roman lawyers to reconcile Greek contracts, which must be in writing with the Roman world, which required an oral exchange. Diosidi has argued that the stipulatio degenerated further, so far that although theoretically an oral exchange is required, in practice this was not necessary. The first text he uses to support his argument is G.3.1.34 However, this text refers to chinographs and synographs, (not Roman terms) and a better interpretation of it might be that it simply describes the situation in Greece. He also refers to D.45.1.30, in which a written document purports to be a contract, however this is not incompatible with the arguments of Nicholas.