Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

that might be required in the making of a contract, such as writing down an agreement, signing that agreement, shaking hands, registration in some central archive, or even using the word “contract.” The one “formal” contract (that is, contract defined by its formalities) to be discussed here is one usually called by its Latin name, stipulatio (plural stipulationes ), which can be roughly translated as “binding promise” (see Chapter 9; [1, 2, 4, 8–10, 12] ). The required form was an oral ques tion and answer between the two parties of the form “Do you promise that X?”; “I promise (that X).” Under some circum stances, a particular Latin word for “promise” was required; the long form of the answer seems to have been optional, as long as the verb of the question was repeated. A problem with this form is that it is not self-proving. Unlike, say, signing a contract, there is nothing in the process that automatically provides evidence that the contract was actually agreed to. We will return to this problem later. While the form was to this extent fixed, the content was not. Any promise that was not by nature illegal or impossible became binding when put in these terms. Most of the other contracts to be discussed here are of a sort called “consensual.” They required no particular form in order to come into effect; the mere agreement (Latin con sensus ) of the parties made the contract. They were, however, restricted in terms of substance. Three contracts covered situ ations of: sale, renting/hiring, and partnership. A consensual agreement that did not fall into one of these areas (or a few oth ers not discussed here) was not a contract at all. So, for instance,

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