OBLIGATIONS
VERBAL CONTRACTS
Obligations: The Sources
G. 3.88 First let us consider those that
arise from contract. Of such there four
kinds: for an obligation by contract
arises either by a thing (re), by words
(verbis), by letters (litteris), or by
consent (consensu).
Obligations: The Sources
G. 3.88 First let us consider those that
arise from contract. Of such there four
kinds: for an obligation by contract
arises either by a thing (re), by words
(verbis), by letters (litteris), or by
consent (consensu).
The verbal contract
The rituality of stipulation
The Form
Advantages/Disadvantages
Certain/Uncertain
Causality and Stipulation
Causality vs. Abstraction
92. An obligation is verbally contracted by question and answer, as for
instance: DARI SPONDES? SPONDEO!; DABIS? DABO!; PROMITTIS?
PROMITTO!; FIDEPROMITTIS? FIDE PROMITTO!; FIDEIUBES?
FIDEIUBEO!; FACIES? FACIAM! "Do you solemnly agree to give it to me?"
"I do solemnly agree." "Will you give it?" "I will give it." "Do you promise?"
"I do promise." "Do you pledge your faith?" "I do pledge my faith." "Do
you guarantee?" "I do guarantee." "Will you do this?" "I will do it."93. The
verbal obligation contracted by the expressions, "Do you solemnly agree to
give?" "I do solemnly agree to give," is peculiar to Roman citizens; the
others belong to the Law of Nations, and therefore they are valid among
all men, whether they are Roman citizens or aliens. And even if they are
uttered in the Greek language they are still valid, for instance: δώσεις ;
δώσω· ὁ,ολογεῖς ; ὁ,ολογῶ· 2ίστει κελεύεις ; 2ίστει κελεύω· 2οιήσεις ;
2οιήσω, so far as Roman citizens are concerned, if they understand Greek;
and on the other hand, although they may be stated in Latin, they will,
nevertheless, be binding on foreigners, provided they are familiar with the
Latin language.
The ritual and its disadvantages
The ritual and its disadvantages
Is a simple agreement enough to create an obligation?
The ritual and its disadvantages
Is a simple agreement enough to create an obligation?
What about a written document?
The ritual and its disadvantages
Is a simple agreement enough to create an obligation?
What about a written document?
Only if their content is the typical of one of the consensual
contracts (sale, hire, mandate, partnership); otherwise, nudum
pactum obligationem non parit (a mere pact does not bear an
obligation), so a ritual is needed:
The ritual and its disadvantages
Is a simple agreement enough to create an obligation?
What about a written document?
Only if their content is the typical of one of the consensual
contracts (sale, hire, mandate, partnership); otherwise, nudum
pactum obligationem non parit (a mere pact does not bear an
obligation), so a ritual is needed:
'Decem mihi dari spondes?' spondeo
The ritual and its disadvantages
Is a simple agreement enough to create an obligation?
What about a written document?
Only if their content is the typical of one of the consensual
contracts (sale, hire, mandate, partnership); otherwise, nudum
pactum obligationem non parit (a mere pact does not bear an
obligation), so a ritual is needed:
'Decem mihi dari spondes?' spondeo
Disadvantages?
The ritual and its disadvantages
The ritual and its disadvantages
What if the stipulation is more complicated?
The ritual and its disadvantages
What if the stipulation is more complicated?
cautio usufructuaria, cautio rem pupilli salvam fore
The ritual and its disadvantages
What if the stipulation is more complicated?
cautio usufructuaria, cautio rem pupilli salvam fore
What if the parties live in different cities?
The ritual and its disadvantages
What if the stipulation is more complicated?
cautio usufructuaria, cautio rem pupilli salvam fore
What if the parties live in different cities?
Writing?
The ritual and its disadvantages
What if the stipulation is more complicated?
cautio usufructuaria, cautio rem pupilli salvam fore
What if the parties live in different cities?
Writing?
it can be added to the oral ritual, but not replace it: not
‘constitutive’.
The ritual and its disadvantages
What if the stipulation is more complicated?
cautio usufructuaria, cautio rem pupilli salvam fore
What if the parties live in different cities?
Writing?
it can be added to the oral ritual, but not replace it: not
‘constitutive’.
How to contract an obligation inter absentes?
The ritual and its disadvantages
What if the stipulation is more complicated?
cautio usufructuaria, cautio rem pupilli salvam fore
What if the parties live in different cities?
Writing?
it can be added to the oral ritual, but not replace it: not
‘constitutive’.
How to contract an obligation inter absentes?
Subjects in potestate
The rational behind the ritual
The rational behind the ritual
Could one of the parties argue that he had really not agreed?
That his intention in fact was not entering the contract?
The agreement is made indisputable. It prevents a possible
lack of consideration.
The rational behind the ritual
Could one of the parties argue that he had really not agreed?
That his intention in fact was not entering the contract?
The agreement is made indisputable. It prevents a possible
lack of consideration.
Could one argue that ten had been promised only on the
assumption that a certain service be provided in turn
(CONSIDERATION)?
The content is fixed indisputably, and separated from the
previous negotiations
The rational behind the ritual
Could one of the parties argue that he had really not agreed?
That his intention in fact was not entering the contract?
The agreement is made indisputable. It prevents a possible
lack of consideration.
Could one argue that ten had been promised only on the
assumption that a certain service be provided in turn
(CONSIDERATION)?
The content is fixed indisputably, and separated from the
previous negotiations
Comparison to the modern contractual system
The rational behind the ritual
Could one of the parties argue that he had really not agreed?
That his intention in fact was not entering the contract?
The agreement is made indisputable. It prevents a possible
lack of consideration.
Could one argue that ten had been promised only on the
assumption that a certain service be provided in turn
(CONSIDERATION)?
The content is fixed indisputably, and separated from the
previous negotiations
Comparison to the modern contractual system
Why not an unilateral form? I promise...
VERBAL CONTRACTS
APPLICATION
Creation of an abstract obligation
Versatility
esp. to guarantee specified (and otherwise non executable
performance):
cautio usufructuaria, penal stipulation
Collateral (personal guarantee)
VERBAL CONTRACT
as a collateral
VERBAL CONTRACT
as a collateral
VERBAL CONTRACT
as a collateral
SPONSIO
FIDEPROMISSIO
FIDEIUSSIO
VERBAL CONTRACT
as a collateral
SPONSIO
FIDEPROMISSIO
FIDEIUSSIO
item spondes?
spodeo!
item fide promittis?
fide promitto!
item fide iubes?
fideiubeo!
VERBAL CONTRACT
as a collateral
SPONSIO
FIDEPROMISSIO
FIDEIUSSIO
item spondes?
spodeo!
item fide promittis?
fide promitto!
item fide iubes?
fideiubeo!
citizens
everyone
VERBAL CONTRACT
as a collateral
SPONSIO
FIDEPROMISSIO
FIDEIUSSIO
item spondes?
spodeo!
item fide promittis?
fide promitto!
item fide iubes?
fideiubeo!
citizens
only verbal contracts
everyone
all obligations (inc. natural)
VERBAL CONTRACT
as a collateral
SPONSIO
FIDEPROMISSIO
FIDEIUSSIO
item spondes?
spodeo!
item fide promittis?
fide promitto!
item fide iubes?
fideiubeo!
citizens
everyone
only verbal contracts
all obligations (inc. natural)
extinguished by death
(or after two years by the virtue of Lex Furia)
inheritable
Certum / Incertum
Certum / Incertum
(a) Do you promise 10.000 HS? I do
(b) Do you promise me damages if your wall falls over my property?’
(c) Do you promise to build for me a house on the Cornelian estate?
Certum / Incertum
(a) Do you promise 10.000 HS? I do
(b) Do you promise me damages if your wall falls over my property?’
(c) Do you promise to build for me a house on the Cornelian estate?
Differences?
Certum / Incertum
(a) Do you promise 10.000 HS? I do
(b) Do you promise me damages if your wall falls over my property?’
(c) Do you promise to build for me a house on the Cornelian estate?
Differences?
(a) dare certum
Certum / Incertum
(a) Do you promise 10.000 HS? I do
(b) Do you promise me damages if your wall falls over my property?’
(c) Do you promise to build for me a house on the Cornelian estate?
Differences?
(a) dare certum
(b) dare incertum
Certum / Incertum
(a) Do you promise 10.000 HS? I do
(b) Do you promise me damages if your wall falls over my property?’
(c) Do you promise to build for me a house on the Cornelian estate?
Differences?
(a) dare certum
(b) dare incertum
(c) facere
Certum / Incertum
(a) Do you promise 10.000 HS? I do
(b) Do you promise me damages if your wall falls over my property?’
(c) Do you promise to build for me a house on the Cornelian estate?
Differences?
(a) dare certum
(b) dare incertum
(c) facere
Divisibility?
Certum / Incertum
(a) Do you promise 10.000 HS? I do
(b) Do you promise me damages if your wall falls over my property?’
(c) Do you promise to build for me a house on the Cornelian estate?
Differences?
(a) dare certum
(b) dare incertum
(c) facere
Divisibility?
(a-b) divisible, (c) indivisible. Consequences?
Certum / Incertum
(a) Do you promise 10.000 HS? I do
(b) Do you promise me damages if your wall falls over my property?’
(c) Do you promise to build for me a house on the Cornelian estate?
Differences?
(a) dare certum
(b) dare incertum
(c) facere
Divisibility?
(a-b) divisible, (c) indivisible. Consequences?
Further: (a) claimed by actio certi (condictio), (b-c) by actio (incerta) ex stipulatu.
Certum / Incertum
Actio certi (condictio certae creditae pecuniae:
the same as in case of a loan for
consumption (mutuum) and literal contract
Actio incerti (actio ex stipulatu)
both STRICTI IURIS!
Certum
Incertum
Certum
Incertum
As A has promised sth
If it appears that A ought to indeterminate to B,
give [on the basis of civil
whatever for that reason A
law] 10 to B...
ought to give or perform in
favour of B [on the basis of
civil law]…
Certum
Incertum
As A has promised sth
If it appears that A ought to indeterminate to B,
give [on the basis of civil
whatever for that reason A
law] 10 to B...
ought to give or perform in
favour of B [on the basis of
civil law]…
... let the judge condemn ...
Certum
Incertum
As A has promised sth
If it appears that A ought to indeterminate to B,
give [on the basis of civil
whatever for that reason A
law] 10 to B...
ought to give or perform in
favour of B [on the basis of
civil law]…
... let the judge condemn ...
A in favour of B for 10 ....
for whatever shall be the
case-matter.
Certum
Incertum
As A has promised sth
If it appears that A ought to indeterminate to B,
give [on the basis of civil
whatever for that reason A
law] 10 to B...
ought to give or perform in
favour of B [on the basis of
civil law]…
... let the judge condemn ...
A in favour of B for 10 ....
for whatever shall be the
case-matter.
If it does not appear, let the judge absolve
Certum
Incertum
The role of the judge
Incertum: litis aestimatio on the basis of the interest
Certum: on the basis of the true price.
pluris petitio;
Do you promise...
... ten modii of best quality African
wheat?
... ten modii of African wheat?
...African wheat?
... the wine you keep in your
cellar?
... to give me your copy of Julian's
Digesta?
... to give back the book you have
borrowed from me?
... to give me a Gaulish gladiator
slave?
... 1000 or the Cornelian estate?
... to give me right of way on the
Cornelian estate?
... not to prevent my crossing
through the Cornelian estate?
... the usufruct over the Cornelian
estate?
... your share of ownership on
Stichus?
... an interest rate of 8 % on the
money you have borrowed?
Condicio and dies
Condicio and dies
Titius: Do you promise to give me Stichus on the next kalends of January? If you
don’t, do you promise to give me 1000? - Caius: I do
Condicio and dies
Titius: Do you promise to give me Stichus on the next kalends of January? If you
don’t, do you promise to give me 1000? - Caius: I do
Can Titius claim anything before the kalends of January?
Condicio and dies
Titius: Do you promise to give me Stichus on the next kalends of January? If you
don’t, do you promise to give me 1000? - Caius: I do
Can Titius claim anything before the kalends of January?
If Caius gives the slave before the kalends of January, can he claim him back?
What, If he gives the 1000?
Condicio and dies
Titius: Do you promise to give me Stichus on the next kalends of January? If you
don’t, do you promise to give me 1000? - Caius: I do
Can Titius claim anything before the kalends of January?
If Caius gives the slave before the kalends of January, can he claim him back?
What, If he gives the 1000?
'on the next kalends of January', dies; 'if you don't (fulfil the obligation)'
condicio.
Condicio and dies
Titius: Do you promise to give me Stichus on the next kalends of January? If you
don’t, do you promise to give me 1000? - Caius: I do
Can Titius claim anything before the kalends of January?
If Caius gives the slave before the kalends of January, can he claim him back?
What, If he gives the 1000?
'on the next kalends of January', dies; 'if you don't (fulfil the obligation)'
condicio.
Dies suspends the action, condicio the obligation itself. What kind of stipulatio sub
condicione is the second one?
Condicio and dies
Titius: Do you promise to give me Stichus on the next kalends of January? If you
don’t, do you promise to give me 1000? - Caius: I do
Can Titius claim anything before the kalends of January?
If Caius gives the slave before the kalends of January, can he claim him back?
What, If he gives the 1000?
'on the next kalends of January', dies; 'if you don't (fulfil the obligation)'
condicio.
Dies suspends the action, condicio the obligation itself. What kind of stipulatio sub
condicione is the second one?
Stipulation and its cause
Before leaving Rome for a long journey, Titius,
diffident of his own slaves, entrusts his most
valuable possessions to his neighbour Caius.
In the political turmoil of the late Republic,
Titius and Caius fall in enemy sides. Caius, his
own possessions having been confiscated by
the enemy, now refuses to give back Titius'
unless a high amount of money is paid.
Caius: "Do you promise to give me 200.000
HS?" Titius: "I do promise".
Is this stipulation valid?
Stipulation and its cause
Before leaving Rome for a long journey, Titius, Caius has action against Titius. What
diffident of his own slaves, entrusts his most can Titius do?
valuable possessions to his neighbour Caius.
In the political turmoil of the late Republic,
Titius and Caius fall in enemy sides. Caius, his
own possessions having been confiscated by
the enemy, now refuses to give back Titius'
unless a high amount of money is paid.
Caius: "Do you promise to give me 200.000
HS?" Titius: "I do promise".
Is this stipulation valid?
Stipulation and its cause
Before leaving Rome for a long journey, Titius, Caius has action against Titius. What
diffident of his own slaves, entrusts his most can Titius do?
valuable possessions to his neighbour Caius.
The praetor helps by means of exceptio
doli. How does this work?
In the political turmoil of the late Republic,
Titius and Caius fall in enemy sides. Caius, his
own possessions having been confiscated by
the enemy, now refuses to give back Titius'
unless a high amount of money is paid.
Caius: "Do you promise to give me 200.000
HS?" Titius: "I do promise".
Is this stipulation valid?
Stipulation and its cause
Before leaving Rome for a long journey, Titius, Caius has action against Titius. What
diffident of his own slaves, entrusts his most can Titius do?
valuable possessions to his neighbour Caius.
The praetor helps by means of exceptio
doli. How does this work?
In the political turmoil of the late Republic,
Titius and Caius fall in enemy sides. Caius, his The defendant is absolved if he proves
own possessions having been confiscated by the unlawfulness of the cause
the enemy, now refuses to give back Titius'
unless a high amount of money is paid.
Caius: "Do you promise to give me 200.000
HS?" Titius: "I do promise".
Is this stipulation valid?
Stipulation and its cause
Before leaving Rome for a long journey, Titius, Caius has action against Titius. What
diffident of his own slaves, entrusts his most can Titius do?
valuable possessions to his neighbour Caius.
The praetor helps by means of exceptio
doli. How does this work?
In the political turmoil of the late Republic,
Titius and Caius fall in enemy sides. Caius, his The defendant is absolved if he proves
own possessions having been confiscated by the unlawfulness of the cause
The stipulation is made useless iure
the enemy, now refuses to give back Titius'
praetorio. What was the technical
unless a high amount of money is paid.
reason?
Caius: "Do you promise to give me 200.000
HS?" Titius: "I do promise".
Is this stipulation valid?
Stipulation and its cause
Before leaving Rome for a long journey, Titius,
diffident of his own slaves, entrusts his most
valuable possessions to his neighbour Caius.
In the political turmoil of the late Republic,
Titius and Caius fall in enemy sides. Caius, his
own possessions having been confiscated by
the enemy, now refuses to give back Titius'
unless a high amount of money is paid.
Caius: "Do you promise to give me 200.000
HS?" Titius: "I do promise".
Is this stipulation valid?
CAIUS AQUILIUS IUDEX ESTO. SI PARET NUMERIUM
NEGIDIUM AULO AGERIO DIES MILIA SESTERTIUM
DARE OPORTERE, SI IN EA RE NIHILI DOLO MALO AULII
AGERII FACTUM SIT NEQUE FIAT, QUA DE RE AGITUR,
CAIUS AQUILIUS IUDEX NUMERIUM NEGIDIUM
AULO AGERIO DIES MILIA SESTERIUM
CONDAMNATO, SI NON PARET ABSOLVITO.
LET CAIUS AQUILIUS BE JUDGE. IF IT APPEARS THAT
THE DEFENDANT OUGHT ON THE BASIS OF CIVIL
LAW TO GIVE TO THE PLAINTIFF 200,000 HS, WHICH
IS THE CASE-MATTER HERE, UNLESS ANYTHING HAS
BEEN DONE OR IS DONE IN THIS CASE BY THE
PLAINTIFF BY MEANS OF EVIL FRAUD, LET THE
JUDGE CONDEMN THE DEFENDANT IN FAVOUR OF
THE PLAINTIFF FOR 200,000IF IT DOES NOT APPEAR,
LET HIM ABSOLVE.
Causality vs Abstraction
Causality vs Abstraction
If I take a book from my library and give it to you, does it become yours?
Causality vs Abstraction
If I take a book from my library and give it to you, does it become yours?
It depends on the cause, v. Commodatum (loan for use) vs. donation
Causality vs Abstraction
If I take a book from my library and give it to you, does it become yours?
It depends on the cause, v. Commodatum (loan for use) vs. donation
Traditio = causal.
Causality vs Abstraction
If I take a book from my library and give it to you, does it become yours?
It depends on the cause, v. Commodatum (loan for use) vs. donation
Traditio = causal.
If I mancipate an estate in your favour, does it become yours?
Causality vs Abstraction
If I take a book from my library and give it to you, does it become yours?
It depends on the cause, v. Commodatum (loan for use) vs. donation
Traditio = causal.
If I mancipate an estate in your favour, does it become yours?
Yes: the cause is not relevant here: one takes for granted that the
ritual of mancipatio is performed only when there is intention to
transfer ownership. Ritual substitutes for cause
Causality vs Abstraction
If I take a book from my library and give it to you, does it become yours?
It depends on the cause, v. Commodatum (loan for use) vs. donation
Traditio = causal.
If I mancipate an estate in your favour, does it become yours?
Yes: the cause is not relevant here: one takes for granted that the
ritual of mancipatio is performed only when there is intention to
transfer ownership. Ritual substitutes for cause
Mancipatio = abstract.
Causality vs Abstraction
If I take a book from my library and give it to you, does it become yours?
It depends on the cause, v. Commodatum (loan for use) vs. donation
Traditio = causal.
If I mancipate an estate in your favour, does it become yours?
Yes: the cause is not relevant here: one takes for granted that the
ritual of mancipatio is performed only when there is intention to
transfer ownership. Ritual substitutes for cause
Mancipatio = abstract.
abstract acts tend to be ritual; causal acts, informal.
The difference in trial
The difference in trial
I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to
prove my ownership:
The difference in trial
I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to
prove my ownership:
a) if based on traditio; b) if based on mancipatio?
The difference in trial
I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to
prove my ownership:
a) if based on traditio; b) if based on mancipatio?
(a) the traditio itself and its cause; (b) just the mancipatio
The difference in trial
I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to
prove my ownership:
a) if based on traditio; b) if based on mancipatio?
(a) the traditio itself and its cause; (b) just the mancipatio
When our claim is based on an abstract act, we are favoured by a presumption: it is
presumed that the act had in fact a cause and a licit one.
The difference in trial
I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to
prove my ownership:
a) if based on traditio; b) if based on mancipatio?
(a) the traditio itself and its cause; (b) just the mancipatio
When our claim is based on an abstract act, we are favoured by a presumption: it is
presumed that the act had in fact a cause and a licit one.
What if I (c) sue my debtor on the basis of a stipulatio? What do I need to prove?
The difference in trial
I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to
prove my ownership:
a) if based on traditio; b) if based on mancipatio?
(a) the traditio itself and its cause; (b) just the mancipatio
When our claim is based on an abstract act, we are favoured by a presumption: it is
presumed that the act had in fact a cause and a licit one.
What if I (c) sue my debtor on the basis of a stipulatio? What do I need to prove?
Just the stipulatio itself. Does this mean that the cause is totally irrelevant?
The difference in trial
I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to
prove my ownership:
a) if based on traditio; b) if based on mancipatio?
(a) the traditio itself and its cause; (b) just the mancipatio
When our claim is based on an abstract act, we are favoured by a presumption: it is
presumed that the act had in fact a cause and a licit one.
What if I (c) sue my debtor on the basis of a stipulatio? What do I need to prove?
Just the stipulatio itself. Does this mean that the cause is totally irrelevant?
No: the defendant can prove the cause unlawful or void, and thus get absolution.
The difference in trial
I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to
prove my ownership:
a) if based on traditio; b) if based on mancipatio?
(a) the traditio itself and its cause; (b) just the mancipatio
When our claim is based on an abstract act, we are favoured by a presumption: it is
presumed that the act had in fact a cause and a licit one.
What if I (c) sue my debtor on the basis of a stipulatio? What do I need to prove?
Just the stipulatio itself. Does this mean that the cause is totally irrelevant?
No: the defendant can prove the cause unlawful or void, and thus get absolution.
(1) causal; (2) - (3) abstract. What's the technical difference between them?
The difference in trial
I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to
prove my ownership:
a) if based on traditio; b) if based on mancipatio?
(a) the traditio itself and its cause; (b) just the mancipatio
When our claim is based on an abstract act, we are favoured by a presumption: it is
presumed that the act had in fact a cause and a licit one.
What if I (c) sue my debtor on the basis of a stipulatio? What do I need to prove?
Just the stipulatio itself. Does this mean that the cause is totally irrelevant?
No: the defendant can prove the cause unlawful or void, and thus get absolution.
(1) causal; (2) - (3) abstract. What's the technical difference between them?
in (3) the presumption of a licit cause can be destroyed by the defendant; in (2) it can't.
The difference in trial
I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to
prove my ownership:
a) if based on traditio; b) if based on mancipatio?
(a) the traditio itself and its cause; (b) just the mancipatio
When our claim is based on an abstract act, we are favoured by a presumption: it is
presumed that the act had in fact a cause and a licit one.
What if I (c) sue my debtor on the basis of a stipulatio? What do I need to prove?
Just the stipulatio itself. Does this mean that the cause is totally irrelevant?
No: the defendant can prove the cause unlawful or void, and thus get absolution.
(1) causal; (2) - (3) abstract. What's the technical difference between them?
in (3) the presumption of a licit cause can be destroyed by the defendant; in (2) it can't.
(3) presumption iuris tantum (2) presumption iuris et de iure
In trial
Acts
Causal
The cause has to be
proved
'weakly' abstract
The cause is
presumed iuris
tantum (rebuttable
presumption
'strictly' abstract
The cause is presumed iuris et de
iure (conclusive/
irrebuttable
presumption)
In trial
Acts
Causal
'weakly' abstract
'strictly' abstract
traditio
The cause has to be
proved
The cause is
presumed iuris
tantum (rebuttable
presumption
The cause is presumed iuris et de
iure (conclusive/
irrebuttable
presumption)
In trial
Acts
Causal
'weakly' abstract
'strictly' abstract
traditio
The cause has to be
proved
stipulatio
The cause is
presumed iuris
tantum (rebuttable
presumption
The cause is presumed iuris et de
iure (conclusive/
irrebuttable
presumption)
In trial
Acts
Causal
'weakly' abstract
'strictly' abstract
traditio
The cause has to be
proved
stipulatio
The cause is
presumed iuris
tantum (rebuttable
presumption
mancipatio
The cause is presumed iuris et de
iure (conclusive/
irrebuttable
presumption)
A Case
Aulus wanted to borrow money from Quintus. They agreed that
the money would be paid in a week - once Aulus had finalised a
transaction he was preparing. On the very same day to secure the
future repayment of the loan Quintus asked Aulus Do you promise
that 100 will be given to me? Aulus answered I do promise. They also
made a document evidencing the transaction. A week after
however Aulus’ transaction failed and so he did not come to
Quintus to get the money as he did not need them anymore.
When - after a few months the heirs of the recently deceased
Quintus found the document they decided to claim the amount
therein specified.