- He who also receives a thing which is not owed to him a person who pays it by mistake, is bound by the thing, for he can be sued by the personal action “if it appear that he ought to give” just as if he had received a loan in kind. [G.3.91]
Here Gaius is stating that somebody who receives something which he is not owed because the giver mistakenly believes it is indeed owed, is liable to the condictio just as though he were liable under mutuum, a contract re. In his Institutes, Justinian states the same thing as Gaius but refers to the “condictitia” specifically which is the “action available to the plaintiff against him for the recovery of the thing.
Clearly, there is no contract in such a case; indeed Gaius says that this kind of obligation does not seem to arise out of contract, since he who gives with the intention of paying, is rather desirous of dissolving than of forming an obligation.” However, the rule that a filius could not take part in mutuum seems to apply nonetheless, even though it is not a contract: ‘Hence some think that a pupil, or a woman to whom, without the authorization of the tutor, something has been paid by mistake which was not due, is not liable to a personal action [condictio], any more than by the giving of a loan in kind.” The condictio that is available is the condictio indebiti which was the action available for recovery of a thing mistakenly given.
Hence what is the reason for the discomfiture of G.3.91? It must be noted that Gaius as well as Justinian, fails to give a definition of contract stating only that “every obligation arises either from contract or from wrong.” In our modern understanding of these terms, an obligation arose from a “licit bilateral act importing agreement or from a unilateral act causing damage.” It is obvious that such a dichotomy is too rigid and therefore it required the “categorizing as contract of the duty to repay money/ things paid by mistake.” Whereas, Justinian in his classification of obligation has four categories “they arise either from contract, or what is analogous to a contract [quasi ex contractu], or from delict, or what is analogous to delict [quasi ex maleficio].” Clearly, the example of mistaken payment is a case of quasi ex contract but Gaius did not acknowledge such a thing and Justinian neglects to reclassify the mistaken payment.
This is most likely attributable to the fact mutuum first became actionable not because it was recognized specifically as a contract worthy of enforcement, but “as an application of an as yet incompletely articulated principle that if A had been enriched at the expense of B without any justification, then B should have an action to recover the amount of enrichment.” Indeed, Zulueta argues that the original ground of liability of mutuum seems to be that it is dishonest of a borrower not to repay, and it was for this reason that a condictio applied. Hence it is understandable that Gaius draws a parallel between mutuum and liability arising out of the receiving of property mistakenly believed to be owed.
- But that form of verbal obligation:- Do you bind yourself to give? I do bind myself- is peculiar to Roman citizens, the other forms belong to the law of nations, and therefore, are valid amongst all men, whether Roman citizens and aliens… [G.3.93]
Here Gaius is discussing the verbal contracts, which included stipulatio, dotis dictio, iusiurandium liberti, and addendum (policitatio and votum). He is specifically referring to stipulatio here and the specific format which the question and answer may take. In reference to the question and answer, Gaius is discussing which forms are ius civile and ius gentium and the effect of the language used on the validity of the stipulatio.
Stipulatio was a verbal contract, made by formal question and answer, “in verbal contracts, one party stipulates and the other promises.” It was unilateral, and stricti iuris. Stipulatio in the form of sponsio is ius civile and therefore applies only to cives; it was the original from of stipulatio. However, all other forms of stipulatio, referred to in G.3.92 were ius gentium and applied equally to peregrini as well as cives.
Given the need for speech, a deaf/dumb person could not engage in stipulatio but this issue could be overcome by the use of a slave or a filius to make the contract on behalf of his master. Furthermore, another requirement of stipulatio was that the parties be in the same place to make the contract, “a verbal obligation cannot be contracted with an absent person.” Stipulatio could be ex die and could include condicio. Indeed according to Zulueta, “by stipulatio one could make any promise actionable.” However, the most important requirement of stipulatio was that of correspondence between the question and answer and hence agreement and it is that is in issue here.
Clearly by the time of Gaius, the Greek equivalents of the stipulatio question and answers could be used even by Romans or peregrines and a question in one language, such as Latin, could be replied to in another, even if the parties could only understand one another through the use of an interpretor. Indeed, according to Ulpian; “It makes no difference whether the reply is made in the same language or another… Whether we extend this rule to the Greek language or even to another, such as Punic or Assyrian or some other tongue is a matter of doubt. The writings of Sabinus, however, allow it to be true that all tongues can produce a verbal obligation, provided that both parties understand eachother.” It must be noted that Gaius however only refers to Greek. There is further debate as to whether Leo’s statement, whereby any form of words which regarded an intent to contract and demonstrated agreement would suffice without the need for strict correspondence in the question and answer (stated in a rescript of AD 472) applied in Gaius’ day. Indeed, the dominant view is that most of these relaxations of the form of stipulatio were post-classical as such a development would have made it impossible to distinguish between stipulatio and a pact. Thomas points to a different view which turns upon the interpretation of ‘veluti’ in G.3.92 which he argues means “namely” as opposed to “for example” which would mean that for Gaius there was “an exclusive list of words of promise for creating a binding obligation and that subject to the use of Greek, this remained the rule until the time of Leo. However, I would concur with Zulueta, that despite the fact that it is possible that Gaius was extremely traditionalistic, it is impossible to accept without doubt that the form of stipulatio remained absolutely rigid an undamaged in legal literacy, if not in practice right through the classical period.On the whole the impression created is that in Gaius’s day the forms were neither strictly fixed nor freely variable.
With regards to Justinian, certainly by his time it was irrelevant as to what language the stipulatio was expressed in agreeing with Ulpian and Sabinus’ view, “whether the stipulation is expressed in Latin, or in Greek or any other tongue is immaterial, provided that both the parties understand it.” Nor did it matter whether the same language was used by both parties. Furthermore, Justinian accepts Leo’s statement so that stipulatio required only “concordant apprehension and mutual assent” but these elements were crucial.
- An obligation arises by writing, as, for example, in the case of accounts transferred to the ledger. This transfer of the entries of accounts may occur in two ways, either from thing to person, or from one person to another. [G.3.128]
In this section the obligation that Gaius is discussing is the contract literis, specifically the nomina transscriptitia or expensilatio. He is describing how the obligation literis arises, “in the case of accounts transferred to the ledger.” Furthermore, he discusses the two forms of expensilatio, which arise a re in personam or a persona in personam.
The expensilatio was created by the entry into the codex accepti et depensio of an advance alleged to have been to the debtor, by the paterfamilias and in the case of expensilatio it was the entry into the ledger itself that created the obligation. However, there was another kind of entry which did not create a debt but was merely evidence of it; nomina arcaria, which were simply bona fide receipts and records of expenditure transferred from the daybook into the ledger. Gaius expresses the need to distinguish between nomina aracria and expensilatio: “The entries which are called arcaria, stand on quite a different footing, for in these the obligation arises out of the thing itself, and not by the writing.”
With regards to the two forms of expensilatio mentioned by Gaius, a re in personam occurs in the case of converting one or more existing obligations, bonae fidei or not, into a single stricti iuris money debt: “the entry of a sum by me as due from you, which you me as the result of a sale, a letting or a partnership.” Expensilatio a persona in personam existed whereby a debt is transferred from one debtor to another: “a transfer of the entry from person to person occurs.” Hence it would appear that the contract’s purpose was limited to novation.
The contract literis unlike stipulatio, could not be conditional but it is said that it might be ex die. It was stricti iuris on account of the fact that it was unilateral and always for a certain sum and the remedy was the action certae pecuniae creditae. Gaius explains that the debtor need not have been present at the entry (though he must have given his consent): “But a contract may be made by an entry debiting an absent person.” Furthermore, Gaius clearly regards the creditor’s entry as being the essential act to create the new obligation, “in contracts made by entries, one binds the other by making an entry to his debit, whereby the other is bound”, but this makes no mention of whether the debtor had given his consent. Another obscurity is the fact that the very name nomina transscriptitia suggests cross entries and “since in both cases a previous debt to the maker of the expensilatio is cancelled, we should expect his tabula accepti to record its fictitious receipt because otherwise the balance shown by codex would not agree with the cash in the arca.”
The knowledge of the Roman written contract rests entirely on the account of Giaus and that of Theophilus according to Thomas. This is because it had been long obsolete by the time of Justinian, “Formerly a kind of contract was created by writing, which was said to be made by entries, but these entries are not now in use.” Indeed, according to Zulueta, “the meagreness of Gaius’ account of it [contract literis] makes it probable that even in his day it was obsolescent.”
Thomas Textbook, Chapter 20
Thomas Textbook, Chapter 20
Jolowicz and Nicholas, 285
Jolowicz and Nichlas, 284
