questions from handouts Flashcards
(10 cards)
what is the difference in actions between a stipulatio for a fixed thing in quantity and that when it is not fixed
when the quantity is fixed: condictio
eg ‘do you promise to give me 1,000 denarii’
‘I do’
there is no interpretation or valuation needed - the 1,000 denarii must be given
when the quantity is not fixed: actio ex stipulatu
eg ‘do you promise to do everything necessary to maintain this garden?’
‘I do’
the judge has to ascertain
1. the extent of the obligation
2. the value of damages or performance owed
explain this quote: (aka the concept of the adstipulator)
Institutes of Gaius 3.110 It is, however, possible for us, when we stipulate, to bring
in another person to stipulate for the self-same thing; this person is commonly called
an adstipulator.
The adstipulator could serve as a backup enforcer of the obligation.
If the principal stipulator died or was absent, the adstipulator could bring the same claim (under certain conditions).
- 📦 No Independent Right
The adstipulator’s claim was not independent — he could only claim for the benefit of the principal stipulator (unless authorized otherwise).
He functioned a bit like a trustee or assistant creditor, not as a co-owner of the right.
- 👤 Often a Slave or Agent
Frequently, the adstipulator was a slave or agent (procurator) of the principal stipulator, acting on his behalf.
This allowed legal enforcement by someone who might be present or available when the original stipulator wasn’t.
🧩 Practical Uses in Roman Law
Business or travel: If you were going away, you might appoint an adstipulator to enforce your stipulations in your absence.
Estate planning: In case of death, the adstipulator could step in to collect the debt.
Agency-like relationships before formal agency was fully developed in Roman law.
🚫 Limits
The adstipulator couldn’t release the debtor unless explicitly authorized.
He couldn’t transfer the obligation or alter it — he was legally bound to the original terms.
His rights were extinguished when the main stipulator’s rights were — i.e., he could not claim more or survive longer.
what was a guarantor in a stipulatio
In Roman law, these people were called fideiussores (singular: fideiussor). They were third parties who promised to perform the obligation if the original promissor failed.
They didn’t make a separate promise for something new.
Instead, they made the same stipulation as the original debtor — binding themselves to the identical obligation.
This was usually done immediately after the principal stipulation:
E.g., “Do you promise to pay Lucius 1,000 denarii?” → “I do.”
Then: “Do you also promise the same on his behalf?” → “I do.” (This would be the guarantor.)
🔸 2. Why Use Guarantors?
“…stipulators anxious for greater security…”
This is essentially early credit risk management.
If the original debtor might not be reliable or solvent, a stipulator could request a guarantor to strengthen the obligation.
Roman law allowed multiple guarantors, who were jointly and severally liable (in solidum) unless otherwise agreed.
⚖️ Legal Effects of a Fideiussor
✅ Rights and Duties:
The fideiussor was fully liable for the same obligation as the debtor.
The stipulator could sue either the debtor or the guarantor (or both).
Guarantors had a right of recourse against the principal debtor (reimbursement after paying).
❗ But:
Their obligation was accessory — it depended on the existence and validity of the main obligation.
If the principal stipulation was invalid, the guarantor’s promise fell with it.
what is the importance of consent in an emptio venditio (contract of sale?)
mutual consent alone is enough to form a valid contract of sale
as soon as both parties have agreed on:
the price
the thing
a binding contract of sale is formed
this makes emptio venditio a consensual contract
not binded via formalities (eg stipulatio)
or something physical like a delivery
is payment required for the validity of an emptio venditio (contract of sale)? explain
a contract of sale is valid and enforceable even before money exchanged hands
- the buyer can sue or delivery of the goods
- the seller can sue for the agreed price
the obligations arise from the moment of consent, not from actual exchange
what is the main legal issue of this passage:
Institutes of Gaius 3.140 The price must be definite. Thus, if we agree that the thing
be bought at the value to be put on it by Titius, Labeo said that this transaction was of
no effect, and Cassius approved his view. But Ofilius thought it was a sale, and
Proculus followed his view
can price be determined by a third party later on in a contract of sale?
Digest 18.1.38 (Ulpian) If a man, intending a gift, sells below value, the sale is valid.
For we pronounce a sale totally void only when it is made entirely as a gift; but when
from motives of liberality a thing is sold below value, the validity of the sale is beyond
doubt. This is the general rule; but between husband and wife a sale made below
value from motives of liberality is a nullity
- Sales Below Market Value Are Still Valid
In Roman law, a sale doesn’t need to reflect market value to be valid.
So long as there’s:
Agreement on price
Genuine intention to sell
→ the contract of emptio venditio is upheld.
✨ Even if the price is symbolic or minimal, it’s still consideration — enough to distinguish it from a pure gift (donatio).
This protects freedom of contract, especially in private or informal sales (e.g., a parent selling something to their child for a symbolic amount).
🔸 2. Intent Is Crucial
Ulpian is clear: if the transaction is truly intended as a gift, but dressed up as a sale:
The courts may still treat it as a sale if there’s a price, however small.
If the form of sale is used in name only, with no real price or economic exchange, it may be void as a sham gift.
This reinforces that Roman law respected form, but was also sensitive to underlying intent — a balance between formalism and realism.
⚠️ 3. Exception: Husband and Wife
This is the most intriguing part.
“…between husband and wife a sale made below value from motives of liberality is a nullity.”
Why?
Because Roman law — especially in the Classical period — imposed restrictions on gifts between spouses, particularly:
To prevent manipulation, pressure, or abuse.
To maintain property separation in marriage.
To avoid circumventing gift restrictions through disguised contracts (like “sales”).
Even a real sale, if done at a price too low, could be interpreted as a disguised gift — and therefore invalid in that context.
what are the remedies if a father sells land for less than half its fair value?
- repay the price and recover the land
or - receive compensation for the deficiency if the buyer prefers
is a sale void if the subject matter ceases to exist before the sale?
yes
unless it is a sale of a generic thing
eg ‘ten bushels of wheat’
can you sell something you do not own under an emptio venditio?
what about a stipulatio?
the contract is valid under an emptio venditio
it is void under a stipulatio
