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one a privilege and the other a right or claim, and it is unfortunate that this valuable terminological distinction has not obtained greater currency. When the Roman said that his dominium over a res consisted of the ius utendi, fruendi et abutendi, he was saying in effect that it was the sum of his privileges in respect to a thing. However, in general the ius he sought in court was rarely the determination of dominium as an abstract question, but generally the assertion of a claim that a specific person should act in a specific way because of the existence of dominium in the claimant. From such claims, it may well be, law itself originated. But for our present purposes we shall first turn to the claims which have no particular references to the privileges of dominium. These were the obligations.
The term obligation is a potent word, derived it seems from that ancient body of rites called sympathetic magic. It occurs in vows and curses and incantations generally. When a Roman said, "Numerius obligatus est Aulo," we find it difficult to render the exact force of the prefix "ob," and of the dative case of the predicate noun; but it seems to say literally that Numerius is tied up in a particular way toward Aulus. His actions are restricted. It is Aulus and not he who must determine what he is to do.
How did a man get himself tied up in this fashion? If we follow general analogies, a man got obligated by taking an oath, which combined both the utterance of a formula and the performance of a ritual. In that case he was tied up toward the gods, and if he wilfully severed the bond, he became a thing unclean and outcast. When and exactly how men first tied themselves up in respect to other men as well as toward the gods, we do not know, but it is evident that the potent word and the efficacious ritual played an important part. A man, that is, obligated himself, and could incur an obligation in no other way. And, just as in the case of an oath, the divine bond involved could not be severed without sacrilege, so in the case of the human obligation, the bond could not be severed without violating the common opinion which held it to be valid. The ancient iudex with imperium would command the obligor to act as his bond compelled him. In doing so, he declared that the action of the obligor was a ius of the obligee. He put a legal seal upon the obligation which the defendant had created for himself.
Now, in the ordinary affairs of life, men become involved or tied up with each other in various ways. Some of them, the law will seal as obligations, that is to say, the court selects from the bonds that unite men certain ones as more important. Which bonds will be selected is largely a matter of historical accident. And with
the element of uncertainty implied in the existence of courts it soon becomes understood that the transaction between parties, the negotium, does not become an obligation by itself, but merely because the court is likely to enforce it.
In these transactions, negotia, later Roman society made a most important distinction. Some were stricti iuris, others, bonae fidei. In the former case, the extent of the obligation, the nature of the act to be enforced, could be predicted with a fair degree of precision. In the latter, the existence of an obligation was likely but its content was more or less doubtful, even when it was a very common transaction. A stricti iuris negotium exercised a strong compulsion on the magistrate to attach a specific obligation to it, but as we shall see, it was only a moral compulsion, and when the time came that what were thought moral considerations leaned the other way, he might deny it obligatory effect. A bonae fidei negotium allowed a much freer readjustment of the relation between the parties.
The outstanding stricti iuris transaction was the stipulation. If A desires certain action on the part of N and closes his proposal with the words "spondesne?, Do you so promise?", and if N answered "spondeo, I promise," N at once became obligated to A. It is likely that the form was originally more complicated and involved a ritual of action, but as far as we can trace it clearly, the stipulation had no other requirement than this succession of question and answer and the employment of the particular word spondeo. Later any word was permitted but the insistence on question and answer was theoretically never abandoned.
The stipulation remained the general form in which any transaction of any sort or any part of a transaction that involved future performance might be framed. It must have been extremely common. It was not very burdensome or complicated. It required no technical skill to perform correctly. In later times it was undoubtedly felt that its formalism was something of a safeguard against hasty and incautious acts, but its obligatory character was certainly not due to such considerations of general advantage. Its history is very similar to the history of seals at the Common law. An almost magically potent word created the bond originally, and traces of the effect of the word remained when the stipulation became the means of concluding thousands of bargains daily in crowded market-places.
The stipulation operates unilaterally only. It binds the promissor to the stipulator. It was characteristic of Roman law that it looked at all transactions from one side at a time, and sought as far as possible to differentiate the parties in every negotium. But being a
negotium it required cooperation, and this cooperation was always an audible question and an audible reply.
Did it need another element? Did it need a meeting of the minds, agreement, consent? That really involves what has so often been called the "Will-theory" of legal transactions. Men are bound because they wish to be bound. The will is autonomous.
The merits of the controversy between those who support the will-theory and those who support the declaration-theory, as far as it concerns modern law, cannot concern us here. But it is unfortunately impossible to ignore the issue as far as it affects Roman law, not only because Roman examples have been cited by the proponents of both views, but because we cannot after all understand a Roman obligation unless we examine somewhat the general basis which, however mistakenly, Roman lawyers assigned to it. Common lawyers have sometimes spoken as though "meeting of the minds" was the essence of contractual obligation. This has been hedged in and qualified by conclusive presumptions, and limited by the large admission that the mental condition must necessarily be inferred from external acts.
Now the Roman lawyers often speak of consensus, and often assert in special cases that absence of this consensus vitiates the supposed obligation. But I think we shall see that the term varies somewhat with the particular situation in connection with which the statement is made. It may be noted that neither at Common law nor at Roman law was it ever contended that agreement in itself constituted an obligation. That would have been in flagrant contradiction with ordinary knowledge and experience. It could at best be maintained that agreement was an essential constitutive element, though often not the only element, of an obligation.
So it is stated that consensus was necessary even for the formal negotium of stipulation. That appears in Venuleius, (2nd century) and in Ulpian and Paul, (3rd century). If N has promised by stipulation to give A a slave, and they are not speaking of the same slave, there is no obligation. If we leave out the question of error which must be specially considered in another place, what consensus really means here, can be seen from the sentence immediately following. There the stipulator asked for one of two named slaves, and the promissor mentioned only one of them. There was no question and answer. Similarly in the other cases to which Venuleius and Paul referred, there seems to have been no mention of a particular slave, and therefore that which N promised was not that which A stipulated for. We may say as in the other case, non ad inter
rogatum esse responsum. If N attempted to plead that when he said Pamphilus he did not mean the Pamphilus whom A had in mind, the same objection is possible that Paul makes to a suggestion of an older jurist, semper negabit reus se consensisse, "The defendant will always deny that he had agreed.”
The point seems to be that consensus is a general word that came to be loosely used for a more specific word, conventio, which retained in its obvious etymology something of the idea which underlay all obligatory transactions at Roman law. They are based upon a conscious cooperation of two persons, although this cooperation may not at all have been directed to the creation of the specific obligation that the law attaches to it.
The problems connected with stipulations which occupy so large a space in our texts, are largely the inevitable problems of interpretation. Just what was asked and what was answered? That often needs extrinsic evidence to determine. Again they are problems of judicial organization. The law would not hold a man to an impossible promise, because it could not. It would not hold him to an improper promise because it chose not to do so. The situations presented are very similar to our own and are dealt with in much the same ways.
School of Jurisprudence, University of California.
(To be Continued)
(This is the first of a series of articles on Roman law to be written
by Professor Radin.)
California Law Review
Published by the Faculty and Students of the School of Jurisprudence of the University of California, and issued Bi-monthly throughout the Year
ACCORD AND SATISFACTION: EXECUTORY ACCORD: ENFORCEABILITY-"Upon an accord no remedy lies" was the ancient doctrine of the common law, applied by the courts whenever an executory accord was relied upon either as shield or sword.1 There are two
1 Peytoe's Case, 9 Co. 79.
Allen v. Harris (1696) 1 Ld. Raym. 122, 91 Eng. Rep. R. 978. The court in this case seemed more impressed by strong precedent than by strong reason, the opinion closing with the remarks: "And the books are so numerous, that an accord ought to be executed, that it is now impossible to overthrow all the books. But if it had been a new point, it might be worthy of consideration." This language also indicates that the court was denying the validity of accord as a defense, which was the only question properly before it, and it was only by way of dictum that the court said no remedy would lie upon an accord.
Lynn v. Bruce (1794) 2 H. Bl. 317, 3 R. R. 381.