Litteral contract

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The litteral contract ( Latin contractus litteris ; from littera 'letter, letter', hence also: litteris contrahi ) was a type of contract of ius civile in Roman law , in which the liability in addition to the agreement by means of a written act ( Latin transcriptio 'rebooking') that replaced the payment arose.

The type of contract goes back to the time of the late republic . It must have been abandoned as a legal institution before the end of the Classical period , because its deletion can be traced in various places in the Digest .

Legal system

De facto, the litteral contract was based on an entry in the house book ( codex accepti et expensi ) in which income and expenses of the pater familias were recorded and debts as well as claims were recorded. Ulrich Manthe emphasizes that a monetary claim was justified in such a way that the debtor submitted it to the creditor in a letter ( litterae ) and had it entered in the house book for evidence purposes ( expensilatio ). Accordingly, the litteral contract was a letter contract and not just a written contract documented in the house book .

The reason for the debt was not the booking of an actually made payment transaction ( nomina arcaria ; nomen = claim) in the house book, but the direct debit of a payment that was actually not made with the consent of the debtor for the purpose of a debt transfer. The prerequisite was an existing liability that should be rebooked. The booking in the house book itself then only served as evidence. The aim of the transfer was to repay the old debt by establishing a loan debt ( mutuum ) that was easier to prosecute in terms of process ( interest in protecting creditors ) or by changing the debtor. According to the Sabine doctrine, the institute was reserved for the exchange of debtors.

According to Kaser, it was made credible for the early period that acceptance ( acceptilatio litteris ) was not only used for evidence purposes, but also had a debt-canceling effect if it was requested, for example in the case of remission or debt repayment.

According to today's legal understanding, the legal arrangement is similar to novation through the renewal of an obligation. The legal action to be taken was - as from a loan - the actio certae creditae pecuniae .

Delimitation and meaning

In the Roman Code of Obligations , it was necessary to distinguish the literal contract from the consensual (form-free declarations of intent), the real (additional gift) and the verbal contract (contract with a verbal formula ).

The subordinate importance of litteral contracts may be seen in the fact that they appeared as a separate category of contracts in the beginners' textbook of the Institutiones des Gaius , but not in the early classic Labeo , although it is assumed that they were possibly used over half a millennium into the 3rd century .

literature

Web links

Remarks

  1. ↑ a b The litteral contract was a type of contract that was only used briefly. Today's knowledge about him is essentially based on the writings of the high-class jurist Gaius , 3, 128 ff .; Under Justinian , the litteral contract in the Corpus Iuris had already been canceled.
  2. ↑ Digest 46,3,80.
  3. ↑ Max Kaser : Roman legal sources and applied legal method. in: Research on Roman Law. Volume 36. Verlag Böhlau, Vienna, Cologne, Graz, 1986. ISBN 3-205-05001-0 . P. 160 ff.
  4. ↑ Ulrich Manthe : History of Roman Law (= Beck'sche series. 2132). Beck, Munich 2000, ISBN 3-406-44732-5 , pp. 76, 77.
  5. ^ Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 101.
  6. ↑ Gai. , Inst. , 3.131.
  7. ↑ Gai., Inst. 3,128-130; See also: Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 212.
  8. ↑ Gai., Inst. 3,133.
  9. ↑ Max Kaser : Roman legal sources and applied legal method. In: Research on Roman Law , Vol. 36, Böhlau, Vienna / Cologne / Graz 1986, ISBN 3-205-05001-0 , pp. 160 f.
  10. ↑ Digest 50,16,19. Ulpian 11 ed.
  11. ^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 4 no. 19 (p. 44 f.).