Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

let us consider a specific kind of transaction – say, the sale of a book. Sale was one of the consensual contracts, mean ing (among other things) that it was created by the mere fact of agreement between the buyer and seller. Writing was not required, nor was it binding if there had not actually been agreement. Still, the existence of a written document might be very convincing to a court that had to decide what agreement, if any, had been entered into by the parties. Conversely, the absence of any documentation may have seemed suspicious, even if it did not automatically end a case. In modern terms, a written contract of this sort was not “constitutive” (it did not bind anyone by itself), but it did have an evidentiary func tion. This is different from the (rare) contract litteris discussed earlier, in which the writing was constitutive of the contract. In the case of sale and the other consensual contracts, a writ ten document served an evidentiary role closer to that of, say, accounting records. My cancelled check does not absolutely settle the question of whether you agreed to sell me a book at a given price, or even if I paid that price (the check could have been for something else), but it might help persuade a court of both points. The value of particular documents for proving particu lar points must have varied enormously from case to case, but we can note four features that illustrate the conflicts particu larly well. The first has to do with how lawyers were trained to deal with documents, the second with redundant witness testimony, the third with real-world complications of stipulatio (the contract whose theory we just discussed), and the fourth

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