stipulation
The stipulation ( Latin stipulatio = making a formal promise, also "stipulation") is a type of contract under Roman law (so-called " verbal contract ", Latin: obligatio verbis contracta ). The prerequisite was that the subject of performance existed.
description
In stipulation, a verbal contract , one of the parties verbally formulates a formulaic question, for example: "Do you vow to give me 1000?" (Latin: HS M mihi dari spondesne? ). The other side takes over the question word in an affirmative answer: "I promise it!" (Latin: Spondeo! ) And thereby brings about the contract. The content of the stipulation can be any action, but especially the payment of a sum of money. Depending on the content of the stipulation, the creditor is entitled to the "action for a certain sum of money" ( actio certae creditae pecuniae , if a certain amount of money is promised), the "condictio" ( condictio , if another certain thing is promised) or the "stipulation suit "( actio ex stipulatu , if an incertum is promised ) to the interest in fulfillment by the debtor. In a broader sense, the term stipulation is used today with regard to contractual agreements made without an oral statement.
Antiquity
The stipulation was a formal transaction and the most common (because it was not a purpose-specific) contract of obligations under Roman law. The stipulation was a verbal contract of the ius civile , established a unilateral obligation and is said to have replaced the justification of the claim with the nexum . The promise of performance came about through a question from the recipient of the promise ( stipulator ) and the answer from the person making the promise ( promissor ), whereby the verb of the question sentence had to recur in the answer. Since the answer had to be given immediately after the question ("Unitas actus" D. 45.1.137 pr.), It required the simultaneous presence of the parties in the same place (D.45.1.1 pr.).
Origin and development
Originally, stipulation was reserved for Roman citizens and linked to the verb spondere , so that “ sponsio ” was the synonym for stipulation. The name sponsio indicates the relationship with the sacred oath , so that the spoken word is more "effective" than "protective form". The meaning of the word and the origin of the stipulation are unclear. According to the Institutiones Iustiniani , which goes back to the late antique Emperor Justinian , stipulatio is derived from an otherwise not attested word stipulus (= solid), which is supposed to be related to stipes (= trunk, stick, pole). There has been speculation about the use of a staff in the stipulation ritual , but nothing indicates a derivation of stipula (stalk, splinter). Modern views derive the emergence from a promissory oath or from the creation of a surety. Perhaps the obscurity of its prehistory is due to the fact that stipulation began to play an outstanding role in legal life relatively early, namely already in the legislative process , and entered the period that is historically comprehensible today in an already heavily polished shape. The oldest form was the sponsio , in which the keywords were spondesne and spondeo . Younger are other forms that were also accessible to the peregrines (non-citizens) Since around the beginning of the third century AD, the use of the same keywords was dispensed with, since under Emperor Leo 472 every informal verbal agreement among those present had the effect of one Had stipulation.
Stipulation in the form process
Initially, the stipulation could presumably only have a fixed performance (a certum ) as its object. The resulting action was a condictio or actio certae creditae pecuniae , provided that it was about money. The formula for this lawsuit was: Titius iudex esto. si paret N ͫ N ͫ A ° A ° HSX milia dare oportere, iudex N ͫ N ͫ A ° A ° HS X milia condemnato. si non paret graduated . The so-called condictio triticaria also applies to a certum . However, since the formula in the claim part of the formula ( intentio ): si paret ... oportere was not on money, but on wheat, the judge had to be instructed in the condemnation ( condemnatio ) of the formula, the monetary value of the non-money claim for the monetary conviction to estimate ( taxatio ), because he was only allowed to convict the defendant on money. But once this freedom of the judge was recognized. To estimate “ quanti ea res erit ” (how much this thing will be worth), one could easily recognize stipulations that were based on an indefinite achievement ( incertum ) from the outset . Here the judge was instructed in the formula of actio ex stipulatu to condemn the defendant on the monetary value of the obligation to perform, which was inserted in the intentio with “ quidquid darefacere oportet ”. Consequently, any performance content could then be made the content of a stipulation, be it a dare , facere , or praestare .
Scholarship certificates
Already in republican times it had become common to include a certificate ( cautio ) about the completion of the stipulation . This was all the more obvious as it was not necessary to call in witnesses and the witnessless business had to remain without evidence without a certificate. From the standpoint of republican and classical Roman law , however, such a stipulation document was always only a private document of evidence. This also applied in the event that the parties, as it often happened, had provided a contract document of another type, such as the document on a sales contract , with the final clause that the entire content of the contract was through in an effort to protect themselves against any grounds for ineffectiveness Stipulation is promised. After the East entered the area of Roman law, that is to say since the constitutio Antoniniana of AD 212, the Greek document custom took over the stipulation clause. In it she found a welcome means of adapting her treaties, which were conceived in Greek, to the requirements of Roman law by a convenient final turn. Thus, at the end of all kinds of Greek documents, the phrase: "When asked, he (the undertaking) admitted it". According to the prevailing opinion, in this late period, under the influence of Greek ideas, the requirement of speaking was also dropped. Since the end of classical times, practice is said to have tended to overlook such shortcomings. In this way the requirement of orality would be abandoned and the binding force of the document recognized in the sense of the Hellenistic legal conception. It was Justinian who took a weak turn towards the side of classical law by allowing the deed to be invalidated by proving that one of the two parties was not present at all in the municipality in which the deed was drawn up on the day the deal was concluded had been. On the other hand, according to the dissertation of Ulrike Babusiaux (2006) supervised by Alfons Bürge , the judge was only allowed to assume that the creditor and the debtor had spoken the words with a stipulation clause . As the examples of Gaius 4: 53-53d show, the stipulation determines the wording of the complaint. In this way, the contractual partners also acted as litigants when the contract was concluded. This is a very plausible consideration for the evaluation of evidence, which should not be read as a rigid rule of evidence, let alone as a substitute under substantive law in the sense of moving away from the traditional formal requirements and validity requirements. Because the documents of evidence are naturally not conclusive on this point, the traces are often blurred from today's perspective. Only for the times of the Visigoths is the document itself seen as mandatory, but then it is no longer possible to speak of Roman law.
use
Stipulation owed its practical importance to its versatility. It could include any content, as long as it was legally allowed at all. Since the actio was raised from the stipulation as such, the numerus clausus of the actionable claims did not matter, and thus meant extensive contractual freedom . As a strictly unilateral binding transaction, it could of course only be made subservient to a reciprocal obligation, such as the purchase, by mutually connecting a commodity and a price manipulation with the help of the instrument of the condition . In practice, the stipulation appears with bulk purchases by the wholesale trade (Roman law did not recognize the generic purchase . This, like all long-distance and distance trading, took place in stipulation), with business loans , with promises of donation , with renewal ( novation ) of already existing obligations , with guarantees , and finally with the numerous cautiones of private and procedural law. Cautio is also a guarantee in the form of stipulations: the Usufructuar guaranteed the owner perfect use and return of the thing to be used ( cautio usufructuaria ); the client guaranteed his neighbors freedom from damage ( cautio damni infecti ); the husband guaranteed the person who ordered the dos that it would be returned in the event of divorce ( cautio rei uxoriae ); the debtor represented in the process guaranteed that the judgment would be fulfilled (cautio iudicatum solvi), as well as the seller's guarantee to the buyer for the undisturbed use of the item sold ( stipulatio duplae ). Often already existing obligations were formally confirmed in the cautiones in order to be able to attach a guarantee in the form of sponsio or fideipromissio (since initially only stipulation obligations could be secured by a guarantee). The guarantee was usually linked to a promise of payment in the event of non-compliance. If this monetary payment went beyond the obligee's interest in compliance with the guarantee (e.g. on the duplum), one speaks in modern terms of a contractual penalty . The stipulation thus extended over the entire field of private law; it was an indispensable regulator of Roman legal relations. The stipulation was effective as an abstract promise, but it could also indicate the reason for guilt and in particular refer to the content of another contract (accessory stipulation). The condictio only mentioned the sum claimed. Consequently, the condictio from the abstract stipulation could be used for legal action, even if the legal reason or the purpose of the performance did not exist because only the sum claimed was mentioned. However, abstraction did not entirely prevent recourse to the causa (titulus). The praetor granted an exceptio doli early on . This had an impact on the distribution of the burden of proof in the process: In the case of abstract stipulation, the defendant from it had to prove the connection with a certain causa and its deficiency in order to successfully defend the plaintiff's claim from the stipulatio. In the case of the stipulated stipulation, the plaintiff had to prove not only the stipulation itself but also its correct causa . It should be noted that the praetoric protection was only necessary in the case of abstract stipulation. In contrast, the stipulated stipulation was ipso iure ineffective if the legal ground was null and void.
Digests
In the Digest , the 45th book is dedicated to the stipulations. (De verborum obligationibus; De duobus reis constituendis; De stipulatione servorum)
Middle Ages and Modern Times
The traces of stipulation can be found across the entire breadth of modern civil law, so they are particularly dense in contract law . Thus the abstract promise of guilt ( § 780 ) corresponds to abstract stipulation or novation tipulation, with speaking being replaced by writing. An ineffective promise of debt will also be reversed via the right of conditionality , since priority contract law does not apply. For example, the separation of offer and acceptance in contract law of the German-language codifications or the stipulation that the acceptance must correspond exactly to the application, if it is not again to be regarded as a mere application, is each a fruit of the examination of the stipulation.
literature
- Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau study books) ISBN 3-205-07171-9 , pp. 208-211.
- Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 101.
swell
- Stipulation , Lexicon '88
- Abstract and causal stipulation
- stipulation , thefreedictionary
- Ulrike Babusiaux: "Id quod actum est: to determine the will of the party in the classical Roman civil process"; Munich 2006.
- Susanne Hähnchen : "The causa condictionis. A contribution to the classical Roman law of condictions" Berlin 2003.