Учебный год 22-23 / The Law of Obligations

ground;212 the feudal nobility in particular felt (honour-)bound to observe informal "convenientia" or "convenances" ("toutes convenances sont a tenir";213 the terminology is derived from the Latin word "conventio", as used especially in Ulp. D. 2, 14, 1, 3).214 Since the 17th century, the acceptance in practice of "ex nudo pacto oritur actio" has repeatedly been traced back to and justified as being in accordance with old Germanic customary law: "At inter Germanos, quibus sancta semper fides fuit, et verba dare ignotum aliud [sc: quam inter Romanos] ab antique» [fuit] servatum"215 or:

"Maer gelijck de Duitschen van alle oude tijden gheen deugd en hebben geacht boven de trouwe, zoo en is by de zelve . . . verstaen ende gebruickt, dat alle toezegginghen . . . door wat woorden het zoude mogen zijn . . . rccht gaven om te eisschen."216

Both these texts allude to a famous passage in Tacitus' Germania, where the author muses on the stubborn determination with which the Germans honour gambling debts217 and comments, somewhat unappreciatively: "ipsi fidem vocant." The old Germanic saying "one man one man, one word one word" has also often been referred to,218 though entirely out of context.219 Sources which could substantiate the argument are extremely scarce; a passage in the Stadrecht of Freiburg im Breisgau of 1520 ("Wer bedechtlich zusagt, der sol es halten") is

For details cf. Francesco Calasso, La "convenientia" (1932); Paul Ourliac, "La 'convenientia' ", in: Etudes d'histoire du droit prive ojjertes a Pierre Petot (1959), pp. 413 sqq.; Pierre-Clement Timbal, Les obligations contractuelles dans le droit francais des XII!e el XlVe siecles d'apres la jurisprudence du Parlement (1973); cf. also Theo Mayer-Maly, "Der Konsens als Grundlage des Vertrages", in: Festschrift Jiir Erwin Seidl (1975), pp. 121 sq.; Nanz. Vertragsbegriff, pp. 60 sqq.

situation in a metaphorical way: "On lie les boeufs par les comes et les hommes par les paroles, et autant vautune simple promesse ou convenance, que les stipulations du droict Romain. " This is based on an addition to the Accursian gloss, which can be found in 16thand 17th-century editions of that work (ad "iuris vinculum" in Inst. Ill, 13 pr.): "Verba ligant homines, taurorum cornua funes. Cornu bos capitur, voce ligatur homo", and gave rise to the French proverb:

"Comme les boeufs par les comes on lie / Aussi les gens par leur mots font folie" (for all this, see Feenstra/Ahsmann, op. cit., note 205, pp. 38, 43).

215Mevius, Decisiones, Pars V, Dec. CCCCVII.

216Hugo Grotius, Inleiding, III, I, 52.

217"Aleam, quod mirere, sobrii inter seria exercent, tanta lucrandi perdendive temeritate ut, cum omnia defecerunt, extremo ac novissimo iactu de libertate ac de corpore contendant. Victus voluntariam servitutem adit: quamvis iuvenior, quamvis robustior, adligari se ac venire patitur. Ea est in re prava pervicacia; ipsi fidem vocant. Servos condicionis huius per

commercia tradunt, ut se quoque pudore victoriae exsolvant" (XXIV, 3 and 4).

218Cf. e.g. Gliick, vol. 4, pp. 281 sqq.

219It meant originally that a man is bound, in court, by what he has said, even though he had meant to say something else; cf. Ekkehard Kaufmann, "Ein Mann—ein Wort", 1961 furistische Schulung 120 sqq.

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(possibly) the only evidence that the idea of consensuality was recognized in Germany prior to the reception of Roman law.220

4. The contribution of the canon lawyers

But be that as it may, the existence of "naked", non-enforceable pacta had for a long time been attacked on a more fundamental level by the canon lawyers. In the Middle Ages, contracts were usually confirmed by oath. This gave the Church the opportunity to assert its jurisdiction over disputes arising in these matters;221 for a breach of contract, under these circumstances, necessarily involved laesio fidei—breach of a pledge of faith—and this amounted to the sin of perjury. However, before God there is no difference between an informal promise and one confirmed by oath, between a simple lie and perjury. Jesus Christ had even gone one step further; in the Gospel according to St. Matthew he is quoted in the following terms: "But I say unto you, Swear not at all.

. . . But let your communication be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil. "222 In a society where the oath played such a central role, this passage could not be taken to impose a blanket ban on iuramenta.223 The least one could do, however, to bring the law into line with Christ's commandment was to insist that informal promissiones had to be kept in the same manner as an oath: "Promissio simplex obligat sicut et iuramentum. Nee inter haec Deus facit differentiam, cum uterque contraveniendo peccet mortaliter."224 This was already reflected in the so-called canon Quicunque225 of the Decretum Gratiani, the oldest compilation of canon law which was to form, eventually, the first part of the Corpus Juris Canonici. But it only dealt with (informal) unilateral promissiones. The locus classicus on the enforceability of consensual pacta was contained in the Decretals of Gregor IX, the Liber Extra of the Corpus Juris Canonici:

220Cf. W. Kunkd fed.), Quellen гиг neueren Privatrechtsgeschichte Deutschlands, vol. I, 1 (1936),

p.254. The Stadtrecht was drafted by Ulrich Zasius. On the passage quoted in the text and on Zasius' view on the matter in general, cf. Seuffert, op. cit., note 31, pp. 96 sqq.; Feenstra/Ahsmann, op. cit., note 205, p. 16; but also Theo Мауег-Maly, "Die Bedeutung des Konsenses in privatrechtsgeschichtlicher Sicht", in: G. Jakobs (ed.), Rechtsgeltung und Kansens (1976), pp. 101 sq. On forms of obligational transactions and on the question of contractual fidelity in the old German law prior to the reception of Roman law, see Rudolf

Huebner, A History of Germanic Private Law (1918), pp. 490 sqq.; Nanz, Vertragsbegriff,

PR; 24 sqq-

Cf. e.g. Winfried Trusen, "Die gelehrte Gerichtsbarkeit der Kirche", in: Handbuch der Quellen und Literatur der neueren europaischen Privatrechtsgeschichte (1973), p. 486; Berman, Law and Revolution, p. 261.

222St. Matthew 5, 34 and 37. Cf. also Epistula Jacobi 5, 12.

223Mayer-Maly, Rechtsgeltung und Konsens, op. cit., note 220, p. 101.

224Albericus de Rosate, Dictionarium iuris tarn civilis quam canonici, s.v. promissio. Cf. also St. Thomas Aquinas, Summa theologiae, Secunda Secundae, q. 110, art. 3, 5 ("mendacium est, si quis non impleat, quod promisit"), and Secunda Secundae, q. 88, art. 3.

225Secunda pars, Causa XII, Quaest. II, с. вв.

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"Aut inita pacta suam obtineant firmitatem, aut conventus, si se non cohibuerit, ecclesiasticam sentiat disciplinam. Dixerunt universi: Pax servetur, pacta custodiantur."226

This text originally related to a dispute between two bishops about the boundaries of their dioceses which was decided at the first council of Carthage in the year A.D. 348 (hence: ex concilio Africano). In the Decretals of Gregor IX this same text was severed from its original context227 and stated as a general rule. The intention of the compilers becomes abundantly clear when one looks at the heading under which the text appears (within the title "De pactis"); it is the famous adage "pacta quantumcunque nuda servanda sunt", formulated in pointed allusion to the legistic distinction between pacts which are "naked" and others which are "dressed", but also subtly reminiscent of the praetors' promise of "pacta conventa servabo". In the course of the 14th century it became the prevailing opinion among canonists that all informal contractual agreements were directly enforceable by means of a condictio ex canone228 (so named in imitation of the Roman condictio ex lege), that is, not merely protected indirectly through the procedure of denuntiatio evangelica:229 ex nudo pacto oritur actio.230 But whether this rule of canon law could (or should) also be applied in foro civili remained disputed over the centuries.231 On the one hand it could be argued that canon law had to be recurred to "ratione peccati"; for since the days of Bartolus and Baldus it had, generally speaking, been accepted that the law of the Church enjoyed precedence even in the secular sphere, where this was necessary in order to avert or prevent

226 Lib. I, Tit. XXXV, Cap. I.

7 Particularly, the fact was left out that the agreement between the two bishops had been in writing ("manuscriptiones nostrae tencntur et pittacia") and was therefore not an informal

pactum.

22K Johannes Teutonicus, gl. Promiserint ad. C. 12, q. 2, c. 66.

229An institute of canon law that was based on St. Matthew 18, 15-17: "Si peccaverit in te frater tuus, vadc ct corripe eum inter te et ipsum solum: si te audierit, lucratus eris fratris tuum: si te non audierit, adhibe tecum unum vel duos, ut in ore duorum vel trium testium stet omne verbum: quod si non audicrit, die ecclesiae: si autem ecclesiam non audierit, sit tibi sicut ethnicus et pubheanus."

230For details of the development in canon law, cf. F. Spiess, De {'observation des simples conventions en droit canonique (1928); Jules Roussier, Lefondement de Vobligation contmctuelle dans

le droit dassique de I'Eglise (1933); Hermann Dilcher, (1960) 77 ZSS 281 sqq.; Alfred Sollner, "Die causa im Kondiktionenund Vertragsrecht des Mittelalters bei den Glossatoren, Kommentatoren und Kanonisten", (1960) 77 ZSS 240 sqq.; Nanz, Vertragsbegriff, pp. 46 sqq.

Cf. e.g. Wescnbecius, Commentarii in Pandectas, Lib. II, Tit. XIV, 10 (p. 57): "Etsi vero longa est disputatio, an in reliquis Curiis, in quibus secundum ius civile pronunciatur, ius Pontificium obtinere debcat: tamen communis opinio est, et ita usus observat, ut indistincte ex pactis Nudis, serio et deliberate initis, etiam in foro Civili hodie detur actio". One of the first influential writers who unequivocally adopted the rule of canon law in iure civili was Carolus Molinaeus (cf. supra, note 200), who stated: "Sed hodie in praxi hae et omnes leges et theoriac de formulis stipulationum supervacuae sunt, qui etiam extra scripturam publicam vel privatam, sive confessione partis sive testibus aut alias legitime appareat de conventione serio pacta et conclusa in re licita nee prohibita nee inter prohibitos auc inhabilis, pro stipulationc habetur et oritur efficax actio iuxta notatum in с 1, Extra de pactis, quod ita debet intelligi et restringi ct ita in utroque foro seeulari et ecclesiastico observatur".

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sinful behaviour.232 On the other hand, however, the sources contained in the Corpus Juris Canonici did not make it entirely clear whether an abrogation of the Roman law had been intended in this instance.233 But it is indisputable, in any event, that recognition of the principle of ex nudo pacto oritur actio in the canon law contributed considerably to its general acceptance "usu".

5. The position of the natural lawyers; summary

As usually happened in cases where the tide of opinion over the centuries had been flowing increasingly strongly against a particular principle of Roman law, the final breakthrough on a doctrinal level was brought about by the natural lawyers. According to Grotius, the "father" of the modern conception of natural law, fides forms the basis of justice.234 Hence, promises must be kept, whether they have been couched in a specific form or not. Even God would be acting against his nature were he not to keep his word.235 From there it follows that all pacta must be binding. The supreme importance of this principle comes out well in Pufendorf's epochal work on the law of nature and of nations. "Si quae autem inter homines ineuntur pacta, ilia sancte observanda esse, sociabilis natura hominum requirit", he writes, and concludes:

"Igitur religiosissimum juris naturalis praeceptum, et quod universae humanae vitae decus, modum atque rationem temperat, habetur: Ut quilibet fidem datam servet, seu promissa atque pacta expleat."236

Thus, to the natural lawyers, contract was the essential tool for the regulation of human affairs, the cornerstone of all the institutions of the positive law237 (including, incidentally, the State—the famous naturallaw theory of the "contrat social").

All in all, then, the final establishment of a general law of contract based on consensus was the result of a long process, to which a whole

232Wolter, Ius canonicum in iure civili, pp. 43 sqq., 91 sqq.

233Wolter, Ius canonicum in iure civili, pp. 100 sqq.

234Cf. e.g. Dejure belli ac pads. Lib. II, Cap. XI, i. On fides as basis of public international law, as conceived by Grotius, cf. Wolfgang Fikentscher, Defide et perfidia. Der Treuegedanke in den "Staatsparallelen" des Hugo Grotius aus heutiger Sicht (1979).

235Dejure belli ac pads, Lib. II, Cap. XI, 4. On the reception by Grotius of the Christian idea of the faithful God (cf., for example, 2. Timothy 2, 13), see Okko Behrends, "Treu und Glauben, Zu den christlichcn Grundlagen der Willenstheorie im heutigen Vertragsrecht", in: L.L. Vallauri, G. Dilcher (eds.) Christentutn, Sdkularisation und modemes Recht (1981), vol. II, pp. 967 sqq.

236Dejure naturae et gentium, Lib. Ill, Cap. IV, § 2. Cf. also Grotius, Dejure belli ac pads,

Prolegomena, 15 sq.

237Characteristically, Grotius expounds his theory of contract as part of his discussion of the reasons for a just war; private persons, political entities and whole nations are all subject to the same rules. On the structure of Grotius' Dejure belli ac pads, cf. e.g. Wieacker, Privatrechtsgeschichte, pp. 290 sqq,; Hasso Hofmann, "Hugo Grotius", in: M. Stolleis (ed.), Staatsdenker im 17. und 18. Jahrhundert, pp. 65 sqq. On the central importance of contract within the system of natural law, cf. Franz Wieacker, "Die vertragliche Obligation bei den Klassikem des Vernunftrechts", in: Festschrift fur Hans Welzel (1974), pp. 7 sqq.

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variety of factors contributed. That contemporary writers realized the complexity of this process emerges very clearly from a passage of Augustin Leyser's Meditationes ad Pandectas, with which we may conclude this chapter:

"Unde vero pacta nuda hodie vim obligandi acdpiant, de ea non una Jurisconsultorum sententia est. Alii earn ex iure naturae derivant, atque rem hanc ad simplicitatem naturalem reductam dicerunt. Alii ad ius canonicum provocant. . . .

Alii denique mores veteres Germanicos, quibus omnes pactiones vatidae sunt . . .

mansisse perpetuum nee Iuris Romani receptione hac in parte interruptos fuisse perhibent. Sed parum interest, utrum subtilitatem Iuris Romani hac in parte iure naturali, an Germanico antiquo an canonico vinci dicas. Victa certe est et omnia pacta consensu perfecta vim eandem habent quam stipulationes."238

Spec. XXXIX, V.

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A contract is based on the consent of the parties thereto. The scope of such consent is not confined to a number of specifically recognized types of transactions. And the contract does not, as a rule, require compliance with any formalities for its validity. These are the three main elements characterizing our general law of contract, and it is obvious that the final and general recognition of the fact that every lawful agreement begets an action (ex nudo pacto oritur actio) was of momentous importance for the emergence of the modern concept of contract. Over the preceding pages we have tried to sketch the origin of this principle. We shall now have to consider certain of its implications.

I. THE ROMAN CONTRACT OF STIPULATION UNDER THE IUS COMMUNE

1. From contract verbis to contract litteris

There is one question that immediately springs to mind: but what about the stipulation? This contract verbis, it will be remembered, was the backbone of the contractual scheme of Roman law.1 It was universally applicable; provided only the simple, oral formality was complied with, every lawful agreement could thus be made enforceable. Under these circumstances it commended itself as an institution which could have provided, par excellence, a foundation for a general law of contract. And indeed, the developments in post-classical law, as a result of which the stipulation was stripped of its formalism and adapted to the practice of the time,2 may be regarded as a step in this direction. In a way, however, this trend was stopped by Justinian who, as we have seen,3 attempted to reconcile the irreconcilable, namely the (classical) theory of an oral transaction and the (contemporary) practice of a written one. Thus, within the Corpus Juris Civilis we find (and, more importantly, the medieval lawyers found) two different historical layers of one and the same institution side by side; and at a time when little interest was displayed in the historicity of the Corpus Juris Civilis, this was bound to create a confusion which was decidedly unfavourable for

1Cf. supra, pp. 68 sqq., 89 sqq; see also, for example, Wolfgang Adam Lauterbach, Collegium theoretico-practkum. Lib. XLV, Tit. I, I (". . . apud Romanos fere omnia negotia in stipulationcm deducebantur, propter eius firmitatem . . . Quasi nodus enim est omnium obligationum").

2Cf. supra, pp. 80 sqq.

3Cf. supra, pp. 81 sq.

546

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the survival of the stipulation as a central element of the law of contract.4 The glossators, true to the sources as they were, reaccentuated the requirements of the classical (oral) stipulatio, as they found them, particularly in title 45, 1 ("De verborum obligationibus") of the Digest. Thus, conclusion of the contract was seen to depend on the following five requirements: primo interrogatio, secundo responsio, tertio quod interrogatio precedat responsionem, quarto loco quod responsio fiat incontinenti post interrogationem, quinto quod responsio congrua id est intellegibilis. Of all this, however, one finds very little if account is taken of the way in which the stipulation lived on in medieval contractual practice. Here it was—along the lines of the postclassical Roman tradition—essentially a contract litteris, for the stipulation was usually incorporated into a (notarial) document.5 All the requirements of the oral stipulation were projected into this instrument, whether they had in fact been complied with or not.6 The bridge between theory and practice was established by a number of presumptions, but these presumptions operated only on the basis of specific words and clauses which had to be contained in the document (especially the verb "promittere" as opposed to, for example, "convenire").7 Thus, it was a risky business to "stipulate" by way of "scriptura privata", and the proper drafting of the contract became more and more a matter for professional tabelliones.8 The simple and uncomplicated stipulation, so familiar to every Roman citizen, had finally been turned into an arcanum of notarial practice.9 As such it had lost its appeal as a practically viable and universally suitable cornerstone of contractual theory.

2. Ex nudo pacto oritur actio and the form of stipulation

As a consequence of these developments, a significant vacuum had now become apparent within the contractual scheme of Roman law as taken over by the medieval lawyers; for the convenient and universal availability of the stipulation was one of the main reasons why the Romans had been able to maintain the principle of "ex nudo pacto non oritur actio". It is obvious that this vacuum was bound to be filled by

4For details, see Romualdo Trifone, "La 'stipulatio' nelle dottrine dei glossatori", in:

Studi in onore di Enrico Besta, vol. I (1939), pp. 171 sqq.; Nanz, Vertragsbegriff, pp. 36 sqq.

5Nanz, Vertragsbegriff, p. 38; cf. also Francisco Brandileone, "La 'stipulatio' nelle carte italiane del medio evo", in: Melanges Fitting, vol. I (1907), pp. 101 sqq.

6Riccobono/Кегг Wylie/Beinart, pp. 7 sqq., 204 sqq.; Nanz, Vertragsbegriff, pp. 38 sq.

7Bartolus had tried to extend the presumption to this term too, but his opinion has not

been followed; cf. C. Karsten, Die Lehre vom Vertrage bei den italienischen Juristen des Mittelalters (1882), pp. 187 sqq.

8 The tabellio, in Rome, was a private, professional person who drew up written documents for private individuals (Berger, ED, p. 727). On the medieval notariate based on that tradition, cf. Armin Wolf, "Das offentliche Notariat", in: Handbuch der Quellen und

Literatur der neueren europdischen Privatrechtsgeschkhte, vol. I (1973), pp. 505 sqq.; Winfried

Trusen, "Zur Geschichte des mittelalterlichen Notariats", (1981) 98 ZSS 369 sqq. 9 Wesenberg/Wesener, p. 47.

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extending the range of enforceable pacta: a process that came to its logical end with the final abolition of the very notion of a pactum nudum. Thus it came about that the modern concept of contract descends, in direct line, from the consensual contracts, not from the stipulations of Roman law.10 The medieval stipulation, with its strangely hybrid nature, became part of the glossatorial scheme of vestimenta, sub voce "verbis seu litteris", or "scriptura vel stipulatione".11 But the advent of "ex nudo pacto oritur actio" heralded the end of its distinguished career. Some writers, of course, refused to acknowledge the inevitable and stood aghast at any intimation that the contract of stipulation had ceased to exist: "Neque audiendi sum", they urged their readers, "qui stipulationes hodiernis moribus non amplius usitatas esse arbitrantur."12 Predominantly, however, the writers of the usus modernus realized that there was no longer any room for a special type of contract "stipulation"; it does not make sense to accept every ("bare") pact as actionable, but to continue to cultivate certain solemnities (albeit not in reality but on the basis of certain more or less elaborate presumptions) which serve to clothe ("bare") pacta with actionability! Such formalities were now pointless; Hugo Grotius referred to "zodanige scherpzinnigheid", which, he noted with approval, had never been accepted "[by] de Duitschen".13 But all was not lost. If the stipulation gradually sank into oblivion as a specific form of contract, this did not mean that the whole body of law built up around it by the Roman lawyers had become irrelevant too. In fact, the titles 45, 1 of the Digest and 8, (37) 38 of the Codex continued to be subjected to scholarly debate. For what had happened is described by Groenewegen as a fusion of the law of pacts and of stipulations ("Hodiernis moribus confusa sunt pactorum et stipulationum jura").14 Others, as we have already seen, maintained that nuda pacta were as good as stipulations ("hodie . . . pro stipulatione habe[n]tur").15 The consequence was spelt out, very clearly, by Johannes Voet: ". . . ea, quae de stipulationibus jure civili cauta inveniuntur, etiam ad hodierna pacta transferri debeant."16 The rich casuistry, the principles and regulae developed by the Roman lawyers with regard to stipulations

1 One important consequence of this was that contracts in general became subject to the regime of bona fides, which had governed the application and construction of consensual contracts in Roman law.

11Riccobono/Kerr Wylie/Beinart, p. 7.

"Voet, Commentarius ad Pandeclas, Lib. XLV, Tit. I, I; other authors equally disinclined to part with such a venerable institution of Roman law are discussed by Nanz, Vertragsbegriff, pp. 123 sq. In particular, they admired the "firmitas" of the Roman stipulation.

13Inleiding, III, I, 52. In later centuries, a more positive attitude towards the stipulation prevailed once again. Savigny, for instance, stressed the advantages of this formal type of contract and regretted its abolition in contemporary practice: ObUgalionenrecht, vol. II,

pp.186 sqq; c(. also e.g. Puchta, Pandekten, § 250. H De legibus abrogatis, Dig. Lib. XLV, Tit. I, 1. 1.

13Cf. supra, p. 543, note 231 and p. 545.

Commentarius ad Pandectas, Lib. XLV, Tit. I, I; his statement quoted above (note 12) has to be read in this light.

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were thus preserved, and judiciously channelled, mutatis mutandis, into the mainstream of contractual theory and practice.

II.THE DOCTRINE OF CAUSA

1.Ex nudo pacto oritur actio and the notion of causa

The oral formality required for the classical Roman stipulatio had been a convenient way of establishing whether the parties seriously intended to be bound or not. The danger always exists that people will commit themselves rashly and without due consideration; but the question-and- answer ritual with, in particular, the use of a key verb, must have made it abundantly clear to any Roman citizen what he was letting himself in for. The rule of "ex nudo pacto поп oritur actio", from this point of view, served to protect those who were inexperienced or careless in handling their affairs. This, in any event, was the opinion of the late medieval lawyers.17 But how under these circumstances could one—particularly the canon lawyers!—justify giving up this rule? The answer to this question is simple: actionability was extended only to those pacta which were seriously intended.18 Acceptance of the principle that every lawful agreement begets an action thus carried with it, as a corollary, the introduction of what Zweigert19 has called an indicium of seriousness: a general requirement intended to distinguish serious promises from those which should not be regarded as binding. We have already come across this criterion; Grotius, for instance, referred to it when he said that all "toezegginghen die uit eenighe redelicke oorzaecken geschieden . . . recht gaven om te eisschen".20 It is the idea that an agreement, in order to be enforceable, must be shown to be based on a (lawful) cause. This doctrine lives on in several modern legal systems, most notably in French law, where art. 1131 code civil provides that promissory contracts are valid only if they have a cause.21 It found its origin in medieval law, which had in turn, as was so often the case, used a few Roman bricks in order to create a totally un-Roman doctrinal edifice.

2. Causa in Roman law

In the title 2, 14 of the Digest the term "causa" appears in two places, both times in connection with the innominate real contracts. In the one case, Ulpian quotes Aristo as stating that "et si in alium contractum res non transeat, subsit tamen causa, . . . esse obligationem": there is an obligation, even if the matter does not fall under any of the "nominate"

17 Cf. Lothar Seuffert, Zur Geschkhte der obligatorisdien Vertrdge (1881), pp. 68, 76 sq. 1Я

He nce , for instance , the re cognition of pacta ge minata; c{ . supra, p. 513. 19 "Seriositatsindizie n", 1964 Juristenzeitung 349 sqq.

20 Meid ing, HI , I , 52.

21 Cf. als o a rt . 13 71 B W .

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contracts (such as emptio venditio and locatio conductio), provided only that a "ground" exists. Some lines later, the same is said in a negative form: "Sed cum nulla subest causa, propter conventionem hie constat non posse constitui obligationem."22 Causa, in this context, can easily be related to the characteristic element of an innominate real contract, namely the performance (be it a datio or a factum) of one of the parties concerned (which brings into existence the claim for counterperformance). This is, in any event, how the glossators understood the notion. "Id est datio vel factum, ex quo vestiatur contractus innominatus . . ." reads the gl. Causa ad D. 2, 14, 7, 4.23 Apart from that, causa appears in connection with the stipulation. Here it meant the underlying purpose of the promise which could, but did not have to be, mentioned in the stipulation. Depending on whether the stipulation had been framed causally or abstractly, lack of the causa stipulationis was either taken into consideration automatically or only if the promisee raised an exceptio (doli).24 The latter was the case in Ulp. D. 44, 4, 2, 3 ("si quis sine causa ab aliquo fuerit stipulatus, deinde ex ea stipulatione experiatur, exceptio utique doli mali ei nocebit"): the parties had entered into a stipulation, but there had probably been a misunderstanding as to what the promise was all about; and since the stipulation had been abstractly drafted, this lack of causa could be raised only on the basis of an exceptio doli.25 What this text did not do was to require specification of the causa as a requirement for the validity of stipulations in general. Yet, this is what the glossators read into it.26 Their interpretation becomes understandable if one bears in mind the changes which had occurred since the days of classical Roman law. With the decline of the formulary procedure, the exceptio had lost its technical significance as an essentially procedural device and had thus acquired a new meaning as a term of substantive law.27 As a consequence, the distinction between invalidity ipso iure and dismissal of the plaintiff's claim per exceptionem was blurred.28 Moreover, as we have seen, by the days of the glossators the stipulation had in actual practice become a contract litteris. Stipulatio sine causa therefore, to

In the comprehensive dissertation on innominate real contracts by Paulus (D. 19, 5, 5) causa is, however, neither mentioned as a word nor stated as a requirement.

23Cf. also gl. Causa ad D. 2, 14, 7, 2.

24Cf. supra, p. 93.

25Wolf, Causa stipulationis, pp. 12 sqq., 27 sqq.

26Cf. Alfred Sollner, "Die causa im Kondiktionenund Vertragsrecht des Mittelalters bei den Glossatoren, Kommentatoren und Kanonisten", (1960) 77 ZSS 222 sqq.; J.L. Barton, "Causa promissionis again", (1966) 34 TR 41 sqq.; cf. also Berman, Law and Revolution, pp. 245 sqq. On post-classical Roman practice (stipulation increasingly became a causal transaction), see Kaser, RPr II, pp. 378 sqq.

27Riccobono/Kerr Wylie/Beinart, pp. 128 sqq.; Kaser, RPr II, pp. 69 sqq.; cf. also infra, p. 681.

28 Thus, even in post-classical Roman law, whether a stipulation had been drafted abstractly or causally mattered only as far as the question of onus of proof was concerned. Cf. e.g. Riccobono/Kerr Wylie/Beinart, pp. 123 sqq.; Kaser, RPr II, p. 379.

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