Under the Roman law of obligations, there were four forms of contract: consensual contracts, verbal contracts, contracts re and contracts litteris. Furthermore, there were three forms of verbal contract: dotis diction (concerning arrangements for dowry prior to marriage), iusiurandum liberti (the oath of service made by a freedman immediately after his manumission), and stipulatio. This third form of verbal contract is regarded as the most important of the three due to the breadth of situations in which it was used.
Don’t waste time! Our writers will create an original "A history of contract law" essay for you whith a 15% discount.Create order
The other forms of verbal contract are applicable in limited circumstances only whereas stipulatio evolved and extended until it was of use in almost any contractual situations and was viewed as being of unlimited scope. This essay will consider the origins of stipulatio and examine the way in which it attained virtual universality as a means of conducting contractual dealings before it was effectively limited in scope in the time of Justinian. The origins of stipulatio are not clear and certainly it appears to pre-date lex duodecim tabularum (the Twelve Tables, 449 BC) in which well-established concepts such as the rituals and procedures for entering into formal arrangements such as contracts were accepted and incorporated into legal pronouncements. It is thought to be a secularised development of the concept of sponsio by which one party made an oath to the gods to take formal responsibility to pay the debts of another person. This developed into a secular guarantee to undertake and discharge the financial responsibilities and arrangements entered into by a third party. It is for this reason that the form of words that were used in the formulation of stipulatio was promissory (spondere). Therefore it is clear that the origins of stipulato were not contractual but instead it evolved from the practice of entering into a legally binding promise to do something that one was not otherwise obligated to do, i.e. to pay the debts of another person. The role of the oral undertaking extended into the realm of litigation as a way of binding one party to comply with their obligations. In doing so, it evolved into a format whereby the party making the declaration was bound to honour their verbal promise given in response to a question during legal proceedings. For example, the cautio de dolo (promise regarding fraud) became a commonplace part of legal proceedings whereby one party promised to restore property to another’s care and custody without fraud or dissemblance. Another common judicial stipulatio that featured regularly in legal proceedings was the cautio damni infecti which involved a guarantee by the owner of dangerous property to indemnify the owner of neighbouring property against damaged caused. These illustrations demonstrate the unilateral nature of stipulatio as it creates an obligation on one party only to, for example, return property or indemnify against damage to property.
We will send an essay sample to you in 2 Hours. If you need help faster you can always use our custom writing service.Get help with my paper