Formal contracts- stipulation Flashcards
What was the contract verbis?
Stipulation
What were the requirements of stipulation?
In the early law the verb form used was spondere and this verb form was confined to the citizens. However, in the classical law the question and answer could be expressed in other verbs provided that a few requirements were satisfied.
- answer and question correspond
- spoken
- both parties present throughout
- the answer immediately followed the question
What was the function of the stipulatio?
It was a method of contracting rather than being a contract.
What was degeneration?
This refers to the degeneration of the oral form.
Degeneration of stipulatio was the use of writing. In pure Roman law, proof that no words had been spoken would destroy the value of the document.
However, in the provinces (by practice) there was a vulgar law that a written document incorporating a stipulatory phrase was a contract and no oral words were necessary.
How common was the vulgar law?
Seems likely that even in the time of Justinian practice too had become the principle and the only way to invalidate a document alleging a stipulation was by proving that the parties had not met.
how important was the literal contract?
Limited attention by Gaius and implication that it was obsolete by the time of Justinian.
It was a formal contract and its validity depended on the existence of a certain form of writing
How was contract classified in Justinian’s institutes?
In the Digest there is only re, verbis and consensu
What were the problems with the new literal document under Jusitnian?
Problem akin to a document alleging a stipulation which had never been made. The debtor would have to prove a negative and show that the money had never been paid
He was allowed to plead a special defence that reversed the ordinary burden of proof and required the plaintiff to prove the debt independently
What was the exceptio non numeratae pecuniae?
An exception whereby a defendant can claim that the plaintiff has not paid the money to him and that therefore the obligation is not owing.
What was the period of limitation of the exceptio non numeratae pecuniae?
2 years and after these two years the defendant can no longer plead the exceptio and will be obliged to pay
However, there is nothing to show that after the expiry of the two years the defendant was debarred from contesting the existence of the loan alleged in the document. The burden of proof would be on him and he would find it impossible to discharge
What were the duties of the seller?
Had to exercise the care of a bonus paterfamilias in the period between the contract and the conveyance. Thus, the seller was liable under culpa Levis in abstracto. The buyer still had to pay the price despite any vis major or casus. He also had to make delivery of the thing at the exact place and time.
Ensure that the buyer is not evicted from the enjoyment of the thing. To ensure this a stipulation was often incorporated for double the value of the res (stipulatio duplae). Otherwise could bring the actio auctoritatis which was the action against eviction and provided compensation.
Warranty against latent defects- once again must be protected in a separate stipulation usually undertaken at the same time as the stipulation duplae. The stipulation duplae was a stricti iuris action (strict liability)
When was the seller not liable?
If he conveyed a res manipi in other ways than mancipatio- no liability on the seller
What was the actio redhibitoria?
An action to cancel a sale in consequence of defects in the thing sold. It was prosecuted to compel complete restitution to the seller of the thing sold, with its produce and accessories, and to give the buyer back the price, with interest, as an, equivalent for the restitution of the produce.
If brought within 2 months then the contract could be rescinded
Action for damages after 6 months.
