!!Экзамен зачет 2023 год / The Law of Obligations

erit conductio, quam quanti ego putavi."29 Here we are dealing with the rather uncommon situation where the lessor is content with much less than the lessee expects him to be: the lessor imagines the rent to be, say, five, whilst the lessee considers himself bound to pay ten. Pomponius does not regard this transaction as entirely invalid. There is a minimum consensus over five, since the lessee will obviously only be too happy to pay five rather than ten. "Minus in maiore inest":30 his willingness to pay the higher sum can be taken to include acceptance of the lesser amount. Only as to the difference (between five and ten) is there a lack of consensus; but such partial lack of consensus does not affect the rest of the transaction.31 From a very formalistic point of view, the same kind of reasoning could, of course, be applied to the other example too, where it had been the lessor who thought that he had contracted for ten, whilst the lessee was under the impression that he had promised only five. It is obvious, however, that here it would be against the interests of the lessor if one were to construe a consensus on the level of five. The fact that the Roman lawyers did not do so demonstrates again the flexible manner in which they handled a rule such as utile per inutile non vitiatur.32

(e) Error in negotio

Thirdly, there was the situation where the parties did not agree on the nature of their transaction. It is mentioned in D. 18, 1, 9 pr. (". . . sive in ipsa emptione dissentient") and is generally referred to as error in negotio. Ulpianus D. 12, 1, 18, 1 provides an example:

"Si ego quasi dcponens tibi dedero, tu quasi mutuam accipias, nee depositum ncc mutuum est: idem est et si tu quasi mutuam pecuniam dedcris, ego quasi commodatum ostendendi gratia accepi."33

In both these cases money has been handed over, but in neither are the parties ad idem as to the purpose of this act. One of them thinks that it is a deposit, the other takes it to be a loan for consumption; and in the second case the one party regards it as a loan for consumption whilst the other has a loan for use in mind. Neither of these contracts can come into existence under these circumstances. Again, incidentally, it is not clear (and therefore does not seem to matter)34 whether we are dealing

24Pomp. D. 19, 2, 52. On this text cf. e.g. Wolf, Error, pp. 75 sqq.; Wunner, Contractus, pp. 199 sqq.; Wieacker, Melanges Meylan, pp. 398 sq.; Hans Hermann Seiler, "Utile per inutile non vitiatur", in: Festschrift fur Max Kaser (1976), pp. 129 sq.; Okko Behrcnds,

"Institutionelles und prinzipielles Denken i m romischen Privatrecht", (1978) 95 ZSS 209 sqq.

30Cf. supra, pp. 74 sq.

31Utile per inutile non vitiatur.

32Cf. supra, pp. 75 sqq.

33On this text and error in negotio in general, see Wolf, Error, pp. 86 sqq.; Wunner,

Contractus, pp. 207 sqq.

34Contra: Flume, Festschrift Schulz, vol. I, p. 243; but see Wunner, loc. cit. For a different interpretation of this fragment (not based on lack of consensus), sec Wolf, loc. cit.

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with dissensus in the modern sense of the word or with a case involving error (in negotio).35

(f) Error in persona

Dissensus or mistake over the identity of the other contracting partner (error in persona) is not specifically referred to in our fragment D. 19, 1, 9 pr., but appears to have prevented the formation of a contract.

"Si et me et Titium mutuam pecuniam rogavcris et ego meum debitorem tibi promittere iusserim, tu stipulates sis, cum putarcs cum Titii debitorem esse, an mihi obligaris?"-v'

The person referred to as "tu" believes that he receives a loan from Titius, while in reality the money is paid out to him by order of "ego". Under these circumstances, "tu" is not under a contractual obligation towards "ego", for "nullum negotium mecum contraxisti". A little gloss, possibly only added at a later stage, specifies the reason: "[credita pecunia] nisi inter consentientes fieri non potest."

3.The problem of error in substantia

(a)Ulp. D. 18, 1, 9, 2

The most intriguing and disputed kind of mistake considered by the Roman lawyers is error in substantia. The core fragment stems, again, from Ulpian's commentary on Sabinus. It reads as follows:

"Inde quaeritur, si in ipso corpore non crratur, sed in substantia error sit, ut puta si acetum pro vino vencat, aes pro auro vel plumbum pro argento vcl quid aliud argento simile, an emptio et venditio sit. Marcelius scripsit . . . emptionem esse et venditioncm, quia in corpus consensum est, etsi in matcria sit erratum, ego in vino quidem consentio, quia eadem propc . . . owia cst, si modo vinum acuit: ccterum si vinum non acuit, sed ab initio acetum fuit, ut cmbamma, aliud pro alio venisse videtur. in ceteris autem nullam esse venditionem puto, quotiens in materia erratur."37

A variety of examples are presented: vinegar is sold as wine, bronze as gold, lead or some other metal resembling silver as silver. Clearly, we are not dealing with an error in corpore. The parties do not disagree as to the object of their contract of sale, for they both have the same specimen of liquid, the same lump of metal in mind. But the purchaser is seriously disadvantaged by the deal, for the liquid has turned out to be vinegar instead of wine, the metal is not gold, as he had thought, but it is bronze, etc. He has erred as to what the object of the sale really consisted of; his mistake relates to the substance of the thing. This is the crucial feature of the problem. Whether the vendor was labouring under the same mistake, we do not know. Ulpian seems to regard that

" For я modern definition of error in negotio cf. art. 1841 Louisiana Civil Code: "Error as to the nature of the contract will render it void. The nature of the contract is that which characterizes the obligation which it creates. . . . "

36Cels. D. 12, 1, 32; cf. Wunner, Contract»!, pp. 210 sq.

37D. 18, 1, 9, 2.

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as immaterial.38 "Aliud pro alio venire" appears to indicate that the purchaser's error is not spontaneous, but has been induced by the seller.39 But whether there was, to use the terminology of English law, fraudulent or innocent misrepresentation cannot be gauged from the text. The question, then, is: does this (unilateral or mutual) error in substantia prevent a valid contract of sale from coming into existence? Marcellus' answer is no; in his opinion this kind of mistake is not operative. But Ulpian disagrees. He assimilates error in substantia to error in corpore, for the deviation between declaration and intention is equally grave: what has in reality been sold (and to what therefore, from an objective point of view, the purchaser's declaration referred) is entirely different from the thing the purchaser had intended to buy. It is an aliud. Hence the result: nullam esse venditionem.

(b) Error relating to quality

The situation was quite different, however, if the purchaser's mistake did not relate to the substantia (sometimes also the terms "materia" or "qualitas" are used),40 but merely to the quality of the object of sale: "Aliter atque si aurum quidem fuerit, deterius autem quam emptor existimaret: tune enim emptio valet."41 Here the object sold is gold, but the gold is of a lesser quality than the purchaser was entitled to expect. We are dealing with a latent defect, a type of situation for which, as we have seen,42 a different set of rules applied. After all, by the time of classical Roman law, the days of an austere and categorical "caveat emptor" policy were gone and the purchaser was well protected. The sale of slaves and cattle was governed by the aedilitian remedies, whereas the purchaser of other goods was able to avail himself of the actio empti: for damages in case of dolus and breach of formless dicta in venditione or formal promissa, for quanti minoris or redhibition even against the honest vendor. The applicability of these remedies, of course, depended on the validity of the sale: without emptio venditio, no actio empti and no aedilitian remedies were available. It furthermore depended on the existence of a (latent) defect. Bronze, however, can

"эя Cf. Bruce W. Frier, "Roman Law and the Wine Trade: The Problem of'Vinegar Sold As Wine"1, (1983) 100 ZSS 268 sq.

39Stein, Fault, p. 44.

On the question of terminology cf. Wolf, Error, pp. 121 sqq.; Pierre Cornioley, "Error

in substantia, in materia, in qualitatc", in: Stttdi in anore di Giuseppe Grosso, vol. II (1968), e.g. pp. 275 sqq., 293 sqq.; Robert Feenstra, "The Dutch Kantharos Case and the History of Error in Substantia", (1974)48 Tulane LR 853 sqq.; Frier, (1983) 100 ZSS 267 sq. It is highly unlikely that each of these terms had a fixed and distinct technical meaning. Substantia was probably, at least in Ulpian's parlance, a wider concept that went beyond the mere question of "material". Qualitas (cf. e.g. Paul. D. 19, 1, 21, 2), incidentally, docs not mean "goodness" in this context, but "characteristic" in the abstract; recognized already by Cuiacius ("dissensus in materia, qualitate ct substantia cadem SUM"): Comment, in Tit. I De contrah. empt. Lib. XVIII Digest., ad L IX.

41 Paul. D. 18, 1, 10. "~ Cf. supra, pp. 311 sqq.

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hardly be said to be defective gold, nor can lead be regarded as defective silver. Nevertheless, a purchaser can be disadvantaged even more if he receives lead rather than defective silver, and thus it would be highly anomalous if the law had been prepared to come to his rescue only in the second case and not also in the first. The doctrine of error in substantia provided the answer: it freed the purchaser from a contract which for him was fundamentally flawed.43

(c) Drawing the line: vinegar sold as wine

As a result of this, it became necessary to draw a line between cases where the object of the contract suffered from a defect and where it turned out to be of an entirely different substance. Obviously, this could involve some very fine distinctions. Apart from that, differences of opinion were bound to arise as to the proper solution of individual cases; after all, there was not even unanimity about whether error in substantia should be taken into consideration at all! Hence, it is very difficult to find a common denominator for the casuistry contained in the Digest title 18, I.4 4 Ulpian refers to the огкпа, the "being", the

43I share the widely held opinion that the Roman lawyers considered error in substantia only from the point of view of the insufficiency of the prevailing system of remedies for breach of warranty (cf. e.g. Feenstra, (1974) 48 Tutane LR 854) and that the doctrine was developed—in typically casuistic fashion (Kaser, RPr I, p. 238; Schulz, CRL, p. 529)—to fill an unsatisfactory gap in the protection of the purchaser. Hence, only the mistake of a purchaser who paid too much was considered significant. The latter point has, most recently, also been emphasized by Frier. Frier, (1983) 100 ZSS 257 sqq., disagrees, however, with the general view on the historical development of the doctrine of error in substantia.

According to him, it was devised in the early classical period as a primitive means of protecting the purchaser from unconscionable results of enforcing the sale. However, by the late classical period more refined ways of protecting the purchaser within sale had been developed, and consequently the error in substantia doctrine had become so hemmed in by limitations "as to be all but insignificant in practice" (p. 272). Many jurists (Marcellus!) therefore wished to abolish it altogether. But Ulpian "with his usual respect for tradition" was unwilling to follow their lead; he preserved "the doctrine even in its sharply truncated form" (p. 273). In fact, however, Frier is forced to admit that Ulpian began to broaden the doctrine once more (e.g. p. 284), thus paving the way for its survival (and even further extension) in the European ius commune. Frier's argument is most ingenious and contains a wealth of interesting observations. It is. however, ultimately unconvincing, because some of the premises are shaky. Thus, for instance, Frier argues (p. 275) that early classical jurists considered the sale to be void whenever vinegar was sold as wine. He deduces that from the words "ego in vino quidem consentio" in Ulp. D. 18, 1, 9, 2: for how, Frier asks rhetorically, could Ulpian "agree" with Marcellus, except to overrule a previous decision? But surely it can make sense to express one's agreement with a firmly established view, particularly if one wants to emphasize (as Ulpian does) that he agrees with it only in part.

44Cf. also, however, the notoriously difficult fragment of Paul. D. 19, 1, 21, 2, containing both a general statement and an example which appears to be in conflict with the

approach adopted by the other Roman lawyers (and by Paul himself: D. 18, 1, 10): "Quamvis supra dicimus, cum in corpore consentiamus, de qualitate autem dissentiamus, emptionem csse, tamen venditor teneri debet . . .: veluti si mensas quasi citreas cmat, quae non sunt." Does "qualitas" here, after all, mean "quality", not "characteristic" in the abstract? Has a controversy been dropped from the original text, so that it can be considered an inept summary by the compilers? Has a "non" been left out before "csse" ("emptionem non esse")? On this text see, most recently, Stein, Fault, pp. 46 sq.; Wolf, Error, pp. 157 sqq.; Honsell, Qtiod interest, pp. 99 sqq.; J.A.C. Thomas, "Error in persona and error in

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nature or the essence of the object, and he illustrates this vaguely philosophical criterion4^ with the wine/vinegar example. Where something has been sold as wine that was in fact once wine but turned into vinegar in the meantime, the sale is valid. The wine has undergone acetic fermentation, an organic process which makes it unpalatable and destroys most of its commercial value; but the liquid is still virtually of one and the same continuous being.4fi The vinegar, in this instance, is wine turned sour (i.e. bad). The situation was different, where the vinegar sold as wine was (wine) vinegar from the start, and had been specifically prepared as such. Here, the object of the sale was neither wine nor wine turned sour, but an alternative substance. Despite the common origin of wine and vinegar in grape juice, the liquid in question never had the (original) "wineness" envisaged by the purchaser. His error does not relate to quality but to the substance, and thus invalidates the sale.

(d) Further borderline cases

Problems could arise in cases where the object of the sale contained at least some of the material of which it was supposed to consist in its, entirety. We have seen that the contract is valid if the gold is merely of a lower quality than the purchaser expected. It is void if it is not gold but bronze. In D. 18, 1, 14 Ulpian discusses the sale of a bracelet said to be of gold but containing only "auri aliquid": the contract is valid. The same holds true, if it was gilded: "narn si inauratum aliquid sit, licet ego aureum putem, valet venditio." This statement is in direct conflict with an earlier opinion of Julian, concerning a silver-plated table which the parties believed to be of solid silver: "Mensam argento coopertam mihi ignoranti pro solida vendidisti imprudens: nulla est emptio pecuniaque eo nomine data condicetur."47 Various attempts have been made to reconcile these texts.48 It is more likely, however, that there was a difference of opinion between the two jurists. By insisting that the object must have consisted, in its entirety, of a

substantia", in: Laformazionestorica, vol. Ill, pp. 1219 sq., Marie Thercs Fogen, "Citrusholz und Fussschemel", 1982 RJ 165 sqq.; Frier, (1983) 177 ZSS 286 sq. The example concerns the sale of a table which was supposed to have been made of the wood of citrus tuia, a cypress-like tree growing in North Africa, which was characterized by its beautiful grain. Rich Romans liked to buy expensive tables; in one case more than one million sesterces appear to have been paid for a mensa citrea, and Cicero once bought a table for half a million sesterces: Honsell, Quod interest, p. 101; cf also Fogen, 1982 RJ 165, 170.

45On the Aristotelian background of the outrun clause, see Wolf, Error, pp. 139 sqq.; but cf. Frier (1983) 100 ZSS 284.

46On the problem of vinegar sold as wine, particularly on the jurist's evaluation of acetic

fermentation, cf. the detailed analysis by Frier, (1983) 100 ZSS 257 sqq., 274 sqq.

47D. 18, 1, 41, 1.

48Cf. e.g. Wieacker, Melanges Meylan, p. 396, who tries to distinguish the facts of the two cases; cf. also Stein, Fault, pp. 44 sqq.; Thomas, in: La jormazione storica, vol. Ill, pp. 1212 sqq. But see Corniolcy, Studi Grosso, vol. II, pp. 274 sq., 280 sqq.; Feenstra, (1974) 48 Tulane

LR 853 sqq. For a comprehensive discussion of D. 18, 1, 41, 1, see Fritz Sturm, Die rechtsgeschichtliche Exegese (1972), pp. 62 sqq.

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596 The Law of Obiigations

different material, Ulpian limited the scope of the error in substantia doctrine not inconsiderably.

Not in all cases, however, could the line be drawn so easily. ". . . si ego mulierem venderem, tu puerum emere existimasti, quia in sexu error est, nulla emptio, nulla venditio est."49 A female slave was bought in the belief that she was a man. Here the purchaser's mistake obviously did not relate to the material of the object of sale: both male and female slaves are made of flesh and blood. Nevertheless, mistake as to the sex of a slave was regarded as "substantial". Men and women are essentially different; few persons of the female sex would presumably like to see themselves described as defective males. Where somebody had bargained for a boy and received a girl instead, this was a case of aliud pro alio venire. The situation was different where the object of the sale was not a virgin—as she was supposed to be—but had already been deflowered: "Quod si ego me virginem emere putarem, cum esset iam mulier, emptio valebit: in sexu enim non est erratum."50 Here, indeed, the question was whether the purchaser could bring a remedy on account of a latent defect.

The definition drawn in D. 18, 1, 11, 1 thus demonstrates that the problem of error in substantia was not simply reduced to a question of material. At least, therefore, in the writings of Ulpian, and in spite of D. 18, 1, 14, we still find a fairly wide concept of substantia. This casts some doubt over the thesis recently advanced by Frier51 that later classical jurists took a strongly negative stance towards error in substantia, and that its field of application was insignificant in practice.

4. Common mistake

We have already seen that it does not seem to have mattered whether only the purchaser mistook the object of the sale for something else, or whether his mistake was shared by the vendor. Frequently the latter will have been the case; both Ulp. D. 18, 1, 14 and Iul. D. 18, 1, 41, 1 do in actual fact provide examples of a common mistake. In these instances, the invalidity of the contract cannot have been based on a lack of consensus, for both parties were entirely ad idem. They had the same idea about the substance of the object. But it was a (common) misconception. Their consensus related to a different object: aliud pro alio venisse videtur. In their agreement the parties were supposed to identify the object of the transaction. In this they had failed. They had identified an object that did not in fact exist. In this sense the transaction was therefore frustrated, or incomplete, and hence no actions could arise therefrom.

*9Ulp. D. 18, 1, 11, 1. 5(1 Ulp. D. 18, 1, 11, 1.

51 Cf. supra, note 43.

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Error _________________________________________________________________________________________597

5. Error in motive and error in nomine

Errores in corpore, in persona, in negotio and in substantia were the most important forms of operative mistakes. If one of the parties was labouring under any of them, a valid contract (of sale) could not come into existence. In later centuries they were often described as mistakes relating to the content of the contract. Opposed to them are mistakes merely in the motive of the parties' declarations. These, at least as far as the law of contract is concerned, are generally irrelevant.52 What has prompted a person to enter into a contract is entirely his own business. As long as the motive remains outside the content of the contract, it is of no concern to the contractual partner, and the consequences of any misconception in that regard1 must normally be borne by the declarant himself. The Roman lawyers did not conceptualize the problem in this way, but the Digest does not contain cases where the contract would have been regarded as invalid because of an error in motive.53

Another type of mistake, which was irrelevant, was the error in nomine:

"Plane si in nomine disscntiamus, verum de corpore constet, nulla dubitatio est, quin valcat cmptio et venditio: nihil cnim facit error nominis, cum de corpore constat."54

Both parties have the same object (for instance a particular slave) in mind, but one of them errs as to its name. Such a mistake does not affect the content of the contract and hence does not exclude consensus. This is the reason, incidentally, why Ulpian in D. 18, 1, 9 pr. specifically refers to the fact that the slave in question was not present when the contract of sale was concluded ("[l]dem est, si ego rne Stichum, tu Pamphilum absentem vendere putasti"): here we are dealing with an error in corpore, with the result "nullam esse emptionem". The two parties to the contract have two different slaves in mind. Had the slave been present, an error in corpore could hardly have occurred. We would have had a case of a mere error in nomine, and the contract would have been valid.

52 For details, see Rothocft, op. at., note 25, pp. 80 sqq., 36 sqq., 283 sqq. The policy on which this distinction is based has been spelt out succinctly by Roscoe Pound, Jurisprudence, vol. IV (1959), p. 457: "The reason for denying relief where there is mistake only in the motive is the need of weighing against the individual interests of one who acts on mistaken motive the social interest in the security of transactions. The other party had nothing to do with the mistake and it does not inhere in the declaration of the will. But what is decisive is the economic reason, the security of transactions, which should be upheld in order to maintain the economic order, unless failure of an essential element of the transaction makes a strong case of impairment of the interest in individual free self-assertion. Motives are too shifting, too varying in degree of weight, too complex and too little susceptible of proof to be weighed against the security of transactions." Cf., further, Flume, AT, § 25, and Make Diesselhorst, "Zum Irrtum bei Vertragsschluss", in: Sympotka Franz Wieacker (1У70), pp. 186 sqq.

53The matter is different with regard to testamentary dispositions; cf. Hans Josef Wieling, Testamentsausle%utu; im romischen Recht (1972), pp. 208 sqq.; Honscll/Mayer-Maly/Selb, p. 124.

34Ulp. D. 18, 1, 9, 1.

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6. Common error in nom ine

Occasionally it occurs that the error in nomine is common to both parties. Take the famous case of RGZ 99, 147 sqq. revolving around the only Norwegian word every German law student is likely to know. Two parties had agreed to the sale of "haakjoringskb'd" (shark meat), which they, however, took to mean whale meat. A case such as this would not have presented specific problems to the Roman lawyers, since there is consensus about whale meat. Whale meat, therefore, has become the object of the contract.

In modern German law it is more difficult to reach the same conclusion (the only sensible one); since emphasis is on the parties' declarations, the contract appears to relate to shark meat. The deviation from the declaration-oriented approach is normally justified by reference to the ostensibly time-honoured and venerable common-law maxim of falsa demonstratio non nocet.55 It does indeed go back, via the ius commune, to classical Roman law, but there it served a different, and much more limited, function than is attributed to it today.56 For one thing, it related only to testamentary dispositions; and for another it dealt specifically with a situation in which a person or an object had already been sufficiently identified within the will, but where the testator had added an additional (wrong, but superfluous) designation. "Demonstratio falsa est", as Gaius exemplifies,57

"veluti si ita scriptum sit: 'servum Stichum, quem dc Titio emi', 'fundum Tusculanum, qui mihi a Seio donatus est.' nam si constat, de quo homine, de quo fundo senserit testator, ad rem non pertinet, si is, quem emisse significavit, donatus esset, aut quem donatum sibi essc significaverat, emerit."

7.Will-orientation, mistake and the formal transactions

(a)Testaments

These last remarks have carried us into a field of law which presents problems similar to the law of contract, though in a distinctly different way: the law of testate succession. The testament of a person is supposed to convey and embody his or her last will, but it is a strictly formal declaration. Hence, again, the potential for a conflict between verba and voluntas, hence the problems of interpretation and of the effect of "cognitive weaknesses", of defects of the will on the validity of the testator's declaration. The stringency of the (external) formalism

55 Cf. e.g. Flume, AT, § 16, 2; for details, see Hans Josef Wieling, "Die Bedeutung der Regel 'falsa demonstratio non nocet' im Vertragsrecht", (1972) 172 Archiv Jur die civilistische Praxis 297 sqq.

Guido Donatuti, "Falsa demonstratio non nocet", in: Studi di diritto romano, vol. I (1976), pp. 247 sqq.; Giuseppe Grosso, "Sulla falsa demonstratio nelle disposizioni d'ultima volonta", in: Studi in onore di Pietro Bon/ante, vol. II (1930), pp. 187 sqq.; Hans Josef Wieling, "Falsa demonstratio, condicio non scripta. condicio pro impleta im romischen Testament",

(1970) 87 ZSS 197 sqq.

57 D. 35, 1, 17 pr.; cf. also Gai. D. 35, 1, 17, 1.

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that dominates testate succession militates against a particularly liberal attitude to be adopted on these questions. On the other hand, however, account must always be taken of the fact that a contract creates a bond between two (or more) parties, whereas a will neither creates an obligation on the part of the testator nor involves the interests of any other party at all. The will is not addressed to anybody in particular, it does not confer any right (or even an expectation that could be of legal relevance), and it is freely revocable. Whilst, therefore, the law of contract has to balance the interests of both the declarant and the recipient of a contractual declaration, the law of testate succession can focus to a much greater extent on the interests of the former. Since a will cannot be taken to create a reasonable expectation, there is no need for the law to protect any such position. Hence the inclination of most legal systems to meet and carry through the (recognizable) intentions of the testator as far as possible.

(b) Stipulations

It is small wonder, under these circumstances, that testaments were the first formal transactions of Roman law in relation to which the more modern, will-oriented way of interpretation gained ground, and where defects of the will, and in particular error, were taken into consideration. Pre-classical jurisprudence already appears to have gone beyond the typical meaning of the testator's declaration in an attempt to give effect to his (real) intentions. For details, we must refer the reader to the literature on the Roman law of succession.54 For our purposes, it is important to note the general trend of the development. For, once a more liberal attitude prevailed in relation to wills, the scene was set for a gradual relaxation of the strict word formalism in other transactions too, most notably with regard to the stipulatio. We have already stressed repeatedly that consensus, the subjective agreement, came to be increasingly accepted as cornerstone and actual effective reason for all contractual obligations.59 Hence, for instance, the importance of informal pacta for the determination of the content of a stipulation;60 and hence also a tendency to take account of deviations between verba and voluntas. ". . . nam et stipulatio quae verbis fit, nisi habeat consensum, nulla est":61 in spite of formal correspondence between question and answer, a stipulation could be invalid if no actual agreement had been reached between the parties on one and the same object. This appears very clearly from Ven. D. 45, 1, 137, 1:

58 Cf. e.g. Flume, Festschrift Schulz, vol. I, pp. 209 sqq.; Pasquale Voci, Diritto ereditario romano (2nd ed.), vol. II (1963), pp. 806 sqq.; Alan Watson, "Narrow, Rigid and Literal Interpretation in the Later Roman Republic", (1969) 37 TR 351 sqq.; Wieling, op. cit., note 53, passim; cf. also Kaser, RPr I, pp. 239 sq.; Honsell/Mayer-Maly/Selb, p. 123.

5 Cf. e.g. supra, pp. 156 sqq., 165, 510 sq., 565.

60Cf. supra, pp. 510 sq.

61Ulp. D. 2, 14, 1, 3.

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"Si hominem stipulatus sim et ego de alio sensero, tu de alio, nihil acti crit: nam stipulatio ex utriusque consensu perficitur."fi2

The stipulator had one slave in mind, the promisor another: no valid stipulation has been concluded. Or, as Justinian put it in the Institutes: the situation is the same as if no answer had been given to the question.63 The above example can cover two situations:64 question and answer may have referred to Stichus, but there is more than one slave of this name. The stipulator thought of the one Stichus and the promisor of the other. In modern terminology, this would be a case of dissensus. Alternatively, again, the stipulation may ostensibly have been about Stichus. The promisor, however, had a different slave in mind, whose name he believed to be Stichus but who was in actual fact called Pamphilus.65 Here we are dealing with unilateral mistake.66 In Rome, as has been pointed out already, this distinction did not matter67 since in both cases there is dissensus in the broader sense (i.e. a lack of consensus).

As with the consensual contracts, not every form of error could, of course, be regarded as operative. A mere error in nomine, for instance, did not affect the validity of the transaction: "Si in nomine servi, quern stipularemur dari, erratum fuisset, cum de corpore constitisset, placet stipulationem valere."68 Neither did, in the case of a stipulation, an error in substantia invalidate the contract: "Si id quod aurum putabam, cum aes esset, stipulatus de te fuero, teneberis mini huius aeris nomine, quoniam in corpore consenserimus."6y Only if the promisor had deceived the stipulator about the nature of the price of metal could the latter avail himself of an exceptio doli and thus escape condemnation.

8.Error and the protection of the promisee

(a)Modern approaches: English law and German law

Our overview of the Roman sources on the effect of error on the formation of contract may have left the modern reader slightly startled. The possibility of attacking the validity of a contract and thus escaping

62 Cf. also Paul. D. 45, 1, 83, 1.

f'3 "Si de alia re stipulator scnscrit, dc alia promissor, perinde nulla contrahitur obligatio ac si ad interrogatum responsum non essct, veluti si hominem Stichum a te stipulatus quis fuerit, tu de Pamphilo senseris, qucm Stichum vocari credidcris": Inst. Ill, 19, 23.

For a different view, see Flume, Festschrift Schulz, vol. I. pp. 245 sqq. (the text deals only with dissensus in the modern sense); Wolf. Error, pp. 61 sqq. (stipulation is invalid, because the object of the transaction has not been identified); cf. also Wieacker, Melanges Meyian, pp. 400 sqq.; but see Wunner, Contractus, pp. 167 sqq.; Mayer-Maty, Melanges Meylan, pp. 248 sq.; Fritz Rabcr. "Hoc animo dare". (1965) 33 TR 55 sqq.; Kaser, RPr I,

p.239.

"5 Cf. the example in Inst. Ill, 19, 23. 66 Error in corpore, to be more specific. ('7 Cf. supra, pp. 589 sq.

6M Ulp. D. 45, 1. 32.

69 Paul. D. 45, 1, 22.

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