Stipulatio

In the stipulation (Latin stipulatio = formal promise Let, also called " stipulation " ) is a contract type of Roman law (so-called "verbal contract ", Latin: obligatio verbis contracta ).

Description

In the stipulation of the parties orally formulated a formulaic question about: " to give me vow you 1000" (Latin: HS M mihi dari spondesne? ). The other side takes on the question word in an affirmative answer: "I swear it! " (Latin: spondeo! ), Thereby bringing into existence the contract. Contents of the stipulation may be any action, but in particular the payment of a monetary sum. Depending on the contents of the stipulation is available to the creditors from the " action for a sum of money " ( actio certae creditae pecuniae, with promise of a fixed sum of money ), the " Ansa Gung action " ( condictio, with promise of a certain other thing) or " action from the stipulation " ( actio ex stipulatu, with promise of a incertum ) at interest in the fulfillment by the debtor. In a broader sense, without an oral statement regarding Met contract agreements stipulation is spoken today.

Antiquity

The stipulation was a formal business and the most common (because a non - specific purpose ) debt contract of Roman law. It was a verbal contract of the ius civile and founded a unilateral commitment. It should have the demand justification replaced by the Nexum. The promise came about through a question of the promisee ( stipulator ) and the response of the promisor ( promissor ), the verb of the interrogative sentence had to return in the response. Since the answer had to be done 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, the stipulation was the Roman citizens only and spondere coupled to the verb, so " sponsio " synonymous with the stipulation was ( cf. D.50.16.7, Gai. 3.93 ). The name sponsio points to the relationship with the sacred oath, so that the spoken word more " active form " attach as "human form " (cf. the exclusion of dumb and deaf, D.45.1.1 pr. ). The word meaning and origin of the stipulation is unclear. The Institutiones of Justinian (I 3,15 pr. ) Directs stipulatio of an otherwise not attested word stipulus from ( = fixed), which is associated with stipes ( = stem, stick, pole ) (after would stipulatio the meaning identical to the firmatio after of German law, on the use of a rod in Stipulationsritual was speculated on a derivation of stipulation, the stalk, splitters, there is no evidence ). Modern Views direct the formation of a promissory oath, or from the guarantor position here. Perhaps due the opacity of their history just on the fact that the stipulation relatively early, began in Legisaktionenverfahren to play a prominent role in the law of life, and therefore already occurred in a heavily abraded figure in the history of detectable for us period. The oldest form was the sponsio in the spondesne the keywords. and spondeo denominated. Disciples are other forms, which were also the peregrines ( non-citizens ) available: fide promittis? fide promitto, or just promittisne? promitto, then dabisne? dabo. Finally, the use of the Latin language was not considered essential ( Gai. 3, 93; D.45.1.1.6 ) when only the form of question and answer and the DC According to the keywords being upheld. Since about the beginning of the third century AD was abandoned then on the synchronization of the keywords (D. 45.1.1.2 ), since Emperor Leo 472 on the use of question and answer, so that eventually each informal verbal agreement between persons present on the had effect of a stipulation.

Stipulation in the form process

Initially, the stipulation could probably only have a certain fixed power ( a certum ) to the object. The lawsuit it was a condictio or actio certae creditae pecuniae, if it was about money. The formula of this action was: Titius iudex esto. si paret N ͫ ͫ N A ° A ° HSX milia dare oportere iudex, N ͫ ͫ N A ° A ° X HS milia condemnato. si non paret absolvito. On a certum is also the so-called condictio triticaria. Since the formula, however, in relation to that part of the formula ( intentio ): si paret ... oportere, not on money but on wheat was, had the judge in sentencing ( condemnatio ) of the formula are instructed to return the money value of the non -denominated money claim appreciate for monetary condemnation ( taxatio ) because he was the defendant only on money. Had you but once recognized that freedom of the judge. " quanti ea res erit " ( how much this thing will be worth it ) to appreciate, you could readily appreciate also stipulations, denominated from the outset to a non- specific performance ( incertum ). Here, the judge in the formula of the actio was ex stipulatu instructed to order the defendant to the monetary value of the obligation that was inserted in the intentio with " Quidquid darefacere oportet ". Logically could then any performance content are made to the content of a stipulation is it's a dare, facere, or praestare.

Stipulationsurkunden

Even in the Republican period it had become customary, on the conclusion of a stipulation certificate ( cautio ) record. This was the closer, as the presence of witnesses was not required and the evidence -free business without certificate had to stay beweislos. Such Stipulationsurkunde was but from the standpoint of the republican and classical Roman law always just a private documentary evidence. This was also true for the case that the parties, as often happened, a Deed of another kind, such as the instrument of a purchase agreement, in an effort to secure against any ineffectiveness reasons were provided with the final clause that the entire contract was promised by stipulation. After the East had occurred in the area of Roman law, so especially since the constitutio Antoniniana the year 212 AD, the Greek custom of the certificate Stipulationsklausel seized. She found it a welcome means to adapt their Greek imaginary contracts through a convenient final twist to the requirements of Roman law. So encountered quite regularly at the end of the Greek documents of all types the phrase: " when questioned he has (which is Mandatory ) it conceded " According to the prevailing view was accounted for in this late period, under the influence of Greek ideas but also the requirement of orality Since output. . the classical period to have tilted the practice to overlook such deficiencies. thus the requirement of orality would be revealed and recognized the binding force of the instrument within the meaning of the Hellenistic legal opinion. was not until Justinian, in turn, had a weak turn to the side of the classic right out completed by he allowed the exhaustion of the certificate by the evidence that one of the parties had not been present in the church on the day of the transaction in which the deed had been built. Andrerseit after Alfons guarantor supervised interesting dissertation of Ulrike Babusiaux (2006) could only assume that creditors and debtors had spoken the words at a Stipulationsklausel the judge. As the examples of Gaius 4, 53- 53d, the stipulation Determine the version of the application. The parties were as to when the contract is concluded in the role as litigants. This is a perfectly plausible consideration to evidence that can be read not as a rigid rule of evidence, let alone as a substantive replacement in the sense of moving away from the traditional formalities and validity requirements. Because the documentary evidence are not inherently meaningful in this point, blur from today's perspective, often the tracks. Only for the times of the Visigoths, the certificate itself is considered to be mandatory, but there can no longer speak of the Roman law.

Use

The stipulation owed ​​its practical meaning to their versatility. You could take any content unless it was only ever permitted by law. Since the actio was raised from the stipulation as such, it came on the numerus clausus of the cause of action does not, and thus represented a extensive freedom of contract. As a strictly one-sided binding contract she could be sure of a reciprocal obligation, such as buying, be made ​​to serve only in the way that you Preisstipulation a mutually content combined a commodity and each other by means of the instrument of the condition. In practice, the stipulation appears for quantity purchases of the wholesale trade ( Roman law did not know the genus purchase. Latter had, like all long-distance and distance trade occurred in Stipulationsform ), with business loans, donation pledge at renewal ( novation) of existing commitments, with guarantees, finally at the numerous cautiones private and procedural law. Cautio is also a guarantee in Stipulationsform: the Usufruktuar guaranteed the owner proper use and return to the procedure utilizing thing ( cautio usufructuaria ); the builder guaranteed its neighbor -claims ( cautio damni infecti ); the husband guaranteed to the purchaser of the dos return in divorce ( cautio rei uxoriae ); of the process represented by another debtor guaranteed that the judgment might be fulfilled ( cautio iudicatum solvi ), as well as the guarantee of the seller to the buyer for the undisturbed use of the thing sold ( stipulatio duplae ). Often have already been confirmed formally existing obligations in order to connect a guarantee in the form of sponsio or fideipromissio can (because initially only Stipulationsverpflichtungen could be secured by guarantee) in the cautiones. With the guarantee is a promise to pay money in the event of non-compliance was usually associated. Went this allowance beyond the creditor's interest in ensuring compliance with the warranty beyond (eg on the Duplum ), then one speaks of a modern penalty. Thus, the stipulation extended over the whole area of private law; they formed an essential regulator of the Roman legal relations. The stipulation was effective as an abstract promise, but they could also indicate the fault reason and in particular to the contents of another contract related ( ancillary stipulation ). The condictio called only to the suit amount. Consequently, it could be sued by the condictio from the abstract stipulation, even if the legal basis or performance purpose did not exist, because only sum to the suit was called. However, the abstraction prevented recourse to the causa ( titulus ) not entirely. The praetor granted an exceptio doli early. This had the burden of proof in the process of: had In the abstract stipulation of the defendant from her to repel the claim of the plaintiff from the stipulatio successful, the context of a particular causa and prove their deficiency. In the titled stipulation the plaintiff had except the stipulation also prove their right causa itself. It should be noted that the praetorian guard was necessary only in the abstract stipulation. In contrast, the dubbed stipulation was ineffective in nullity of the legal ground ipso iure.

Digests

In the Digest the 43rd book is dedicated to the stipulations. ( De verborum obligationibus; De Duo bus traveling constituendis; De stipulatione servorum )

Medieval and modern times

The traces of the stipulation can be found across the entire width of the modern civil law, they are scattered densely particularly in contract law. So corresponds to the abstract promise of debt ( § 780) of the abstract stipulation or Novationstipulation, the talk has been replaced by the font. Thus, an ineffective debt promise than Kondiktionsrecht is also reversed, as primary contract law does not apply. For example, the separation of offer and acceptance in contract law in the German codifications or the proviso that the adoption of the application must match exactly, it should not again be considered as a mere request, one fruit of dealing with the stipulation.

Swell

• Lexicon '88: Stipulation
• Abstract and causal stipulation
• TheFreeDictionary: stipulation
• Ulrike Babusiaux: " Id est quod actum: to determine the intent of the parties in the classical Roman civil process "; Munich 2006.
• Susanne chicken: " The causa condictionis A contribution to the classical Roman Kondiktionenrecht. " Berlin 2003

• Obligations ( Roman Law )
• Private Law