Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

could be upheld by an advocate.) “For,” the jurist Ulpian explains, “no one was to be allowed to make application who was unable to hear the praetor’s decision.” Key parts of the trial literally did not exist in written form – or perhaps this was an agreed-on fiction. In either case, the importance of the spoken word is highlighted. A somewhat more specific legal device shows a similar radical prejudice in favor of orality. One of the most important forms of Roman contract was the so-called stipulatio (Chapter 12). This contract was entered into when one party asked whether the other swore to carry out certain actions (almost any legal act could be promised), and the second party replied that he did. This seems odd to many moderns. When we require certain kinds of formality (e.g., signing a contract), those forms tend to be self-proving. The formalities of stipulatio (the use of certain words for “swear,” the oral question and answer) are complete failures on this ground. On independent grounds we can assume that stipu latio goes back to the earliest days of Roman law, and so pre sumably to a day when any requirement for writing would be unlikely or impossible. More importantly for the present issue, later Romans preserved the form even when it was no longer necessary. This retention presumed and reinforced the idea that, at least in theory, some legal transactions might be purely oral. (The facts are a little more complicated than this, and we will return to stipulatio later.) There are a slightly larger number of contexts in which Roman law required writing compared to those in which it was not acceptable, but only one of these is of much importance.

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