Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

practical evidentiary problems of this kind. It became normal practice in the case of both kinds of contract to write down the terms of agreement, but until well after our period, this writing did not equal the contract; it was mere evidence (see Chapter 8 on writing). Third, consensual contracts offered the mixed blessing of action at a distance. Since the stipulatio required an oral question and answer, the parties had to be in the same place at the same time in order to bring the contract into being. Other contracts, requiring only agreement, could be made by letter, messenger, or any other means. As the Roman world expanded from a city-state, to Italy, to a pan-Mediterranean empire, it became more and more convenient to be able to do business that was not face-to-face. (Even with consensual con tracts, business would still have been slowed by human travel times.) But this created problems as well. In early face-to-face transactions, the deal could have been struck, and price and merchandise exchanged, all more or less at the same time. With contracts made at a distance, these actions could occur at three different times. It was then neces sary to account for new issues. What happens if the merchan dise is damaged or destroyed between the beginning and end of a sale process? Does either party have a responsibility to see to it that this doesn’t happen? What if the parties misunderstand each other as to the terms of a lease? The specific rules that eventually grew up are complicated, and we need not go into the details here. The main point is that these questions, unlike some of the others discussed earlier, do not have an obvious right answer to guide the lawmaker. Say you have paid $5,000

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