Roman Law and the Legal World of the Romans

Contracts

a consensual contract could protect sale of a thing for cash, but not trading it for another thing. That does not, of course, mean that barter was illegal; rather, one had to protect it by stipula tio or run the risk of being unable to enforce the agreement in court. Depending on the general category of contract (e.g., for mal or consensual) and the particular type within one of these categories (e.g., sale or rental or partnership), certain terms would have to be put into the agreement, others terms could not be put in, and still others would be assumed to be part of the agreement unless something contrary was specified. In the rest of this chapter I will be discussing the specifics of those properties, but it is important to point out here that these are a framework. Beyond the basic agreement, the parties could also include virtually any terms (a “pact”) they wished so long as those terms were not somewhere explicitly forbidden [8, 12, 14] . As the question-and-answer form of the stipulatio suggests, only the person making the promise was obligated to any future action. This made it what is called a “unilateral” or one-sided contract. (Why would anyone want to make such a promise? In practice, these stipulationes often came in pairs and/or included conditions based on what the nonpromising party might do in the future.) The rule for unilateral contracts of this kind was that they were to be judged on a “strict law” ( stricti iuris ) basis. This meant that the court was supposed to apply a strictly lit eral reading, rather than considering the intent of the parties. One important consequence of this approach is that liability was all or nothing. Each party simply had or had not fulfilled

123