his stipulation—that would lie against him in the event of his
failure.
A second form of contract that came into use to a considerable extent in the latter half of the Republic is what is commonly called Literal contract. the literal contract, or, as Gaius phrases it with greater accuracy, the nomen transscripticium.[1] Notwithstanding the prolific literature of which it has been the subject, it must be admitted that in many points our knowledge of it is incomplete and uncertain. The prevalent opinion, formed before the discovery of the Verona MS. had made known Gaius's description of it, and almost universally adhered to ever since, is that such contracts were created by entries in the account-books which the censors insisted that all citizens of any means should keep with scrupulous regularity. They are often alluded to by the lay writers; but the text principally relied on is what remains of Cicero's speech for the player Roscius. From the tenor of the argument in that case, and incidental remarks elsewhere, the conclusion has been formed that a citizen who made an entry in his codex—whether of the nature of a cash-book or a ledger is much disputed—to the debit of another, thereby made the latter his debtor for a sum recoverable by an actio certae creditae pecuniae. Gaius in his description of the contract does not mention the codices; but his account is not inconsistent with the notion that the entries (nomina) of which he speaks were made in them. He says that those entries were of two sorts, nomina arcaria and nomina transscripticia. The former were entries of cash advances; and of them he observes that they did not create obligation, but only served as evidence of one already created by payment to and receipt of the money by the borrower. These entries were posted periodically (usually each month) from a day-book (adversaria), and there were distinct pages in the codex for what was thus paid out of the arca (expensum) and what was paid in. Of the nomina transscripticia Gaius says that there were two varieties, the entry transcribed from thing to person and that transcribed from one person to another, and that both of them were not probative merely but creative of obligation. The first was effected by a creditor (A) entering to the credit of his debtor (B) the liquidated amount of what the latter was already owing as the price of something purchased, the rent of a house leased, the value of work done, or the like, and then on the opposite page of the codex debiting him with same sum as expensum. The second was effected by A transcribing B's debt in a similar way to the debit of a third party (C), hitherto a debtor of B's, and who consented to the transaction—A at the same time crediting B with the sum thus booked against C, and B in his books both crediting C with it (acceptilatio) and marking it as paid to A (expensilatio). These nomina transscripticia were purely fictitious entries so far as any passing of money was concerned, though they had to be made by the direction (jussus) of the person made chargeable as debtor. Corresponding entries in the debtor's own codex, though usual, do not seem to have been necessary.
All this at first sight seems just a series of book-keeping operations. But it was much more than that for the Roman citizens who first had recourse to it. There was a time, as formerly stated, when sale, and lease and the like, so long as they stood on their own merits, created no obligation enforceable at law, however much it might be binding as a duty to Fides or (as moderns would say) in the forum of conscience; to found an action at law it required to be clothed in some form approved by the jus civile. The nexum may possibly have been one of those forms, the vendee or tenant being fictitiously dealt with as borrower of the price or rent due under his purchase or lease; the stipulation was another, the obligation to pay the price or rent being made legally binding by its embodiment in formal question and answer. But stipulation was competent only between persons who were face to face, whereas expensilation was competent also as between persons at a distance from each other. This of itself gave expensilation—which, originally at least, was as much a negotium juris civilis as the sponsio—one advantage over stipulation. But it had also a further advantage, which was not affected by the subsequent recognition of the real and consensual contracts as productive of legal obligation on their own merits: it enabled subsequent transcription of debts from one person to another to be effected. This last must have been of infinite convenience in commerce, not only by enabling traders to dispense with a reserve of coin, but by obviating the risks attending the transit of money over long distances. It was this that led, as Theophilus says was the case, to the conversion even of stimulatory obligations into book-debts; it was not that thereby the creditor obtained a tighter hold over his debtor, but that an obligation was obtained from him which in a sense was negotiable and therefore more valuable. But in other respects it was much more restricted than stipulation. Thus it only applied to money debts; it did not admit of conditions (though it did admit of a term); and it was never available to peregrins, though the Sabinians proposed that transcription a re in personam should be binding on them.
The evolution of the four purely consensual contracts—sale, location, partnership and mandate—supplies matter for one of the Consensual contracts. most interesting chapters in the whole history of the law. But, as it is impossible in such an article as this to attempt to mark the successive stages in the progress of all of them, we shall confine ourselves to sale. The others did not and could not follow identically the same course: location nearly parallel with sale; but partnership and mandate, from their nature, not only started at a different point from the other two, but reached the same goal with them—that of becoming productive of obligation simply on the strength of consent interchanged by the parties—by paths that were sometimes far apart. Nevertheless, a sketch of the history of the origin of the contract of sale may be sufficient to indicate generally some of the milestones that were successively passed by all four.[2]
Going back as far as history carries us, we meet with it under the names of emptio and venditio, but meaning no more than barter; Contracts of sale. for emere originally signified simply “to take” or “acquire” (accipere). Sheep and cattle (pecus, hence pecunia) may for a time have been a very usual article of exchange on one side, and then came raw metal weighed in the scales. But it was still exchange, instant delivery of goods on one side against simultaneous delivery of so many pounds weight of copper on the other. With the reforms of Servius Tullius, as we have seen, came the distinction between res mancipi and res nec mancipi, and with it a regulated mancipation of the former. It was still barter; but along with it arose an obligation on the part of the transferrer of the res mancipi to warrant the transferee against eviction—a warranty that was implied in the mancipation. Whether this rule obtained from the first or was the growth of custom it is impossible to say; but it is probable that it was the XII. Tables which fixed that the measure of the transferrer's liability to the transferee in the event of eviction should be double the amount of the price. Equally impossible is it to say when the practice arose of embodying declarations, assurances and so forth in the mancipation (leges mancipii), which were held binding on the strength of the negotium juris civilis in which they were clothed. They received statutory sanction in the Tables, in the words already referred to more than once—“cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto,” which means in effect “whatever shall by word of mouth be declared by the parties in the course of a transaction per aes et libram in definition of its terms shall be law as between them.”
The substitution, by or soon after the decemvirs, of coined money, that was to be counted, for rough metal that had been weighed, converted the object of transfer on one side into price (pretium), as distinguished from article of purchase (merx) on the other; and sale thus became distinct from barter. In contemplation of the separation of the mancipation and the price-paying, and the transition of the former into a merely imaginary sale, the decemvirs enacted that, mancipation notwithstanding, the property of what was sold should not pass to the purchaser until the price had been paid or security by sureties (vades) given for it to the vendor; and it was probably by the interpretation of the pontiffs that to this was added the rule—that until the price was paid no liability for eviction should attach to the transferrer (or auctor). The reason perhaps of the provision on this point in the XII. Tables was that a vendor who had mancipated or delivered a thing sold by him before receiving the price had no action to enforce payment of the latter; and in such circumstances it was thought but right to give him the opportunity of getting back the thing itself by a real action. It might be, however, that the price had been paid, and yet the vendor refused to mancipate. It was long, apparently, before the purchaser could in such a case compel him to do so. After the introduction of the legis actio per condictionem he (the purchaser) had undoubtedly the power to recover the money on the ground of the vendor's unjustifiable enrichment—that the latter had got it for a consideration which had failed (causa data, causa non secuta); and it is possible that before that he had a similar remedy per judicis postulationem or by an action in factum.
Down to this point, therefore, say the beginning of the 6th century, there were several obligations consequent on sale of a res mancipi; but not one of them arose directly out of the sale itself,
- ↑ Literature: Savigny, “Über den Literalcontract der Römer” (originally 1816, with additions in 1849), in his Verm. Schriften, i. 205 seq.; Keller, in Sell's Jahrb. f. hist. u. dogm. Bearbeit. des röm. Rechts, i. (1841), 93 seq.; Gneist, Die formellen Verträge d. röm. Rechts (Berlin, 1845), 321 seq.; Danz. Gesch. d. röm. Rechts, ii. 42 seq. (where there is a résumé of the principal of the older theories); Buonamici, in the Archivio Giuridico, xvi. (1876), 3 seq.; Gide, Études sur la novation (Paris, 1879), 185, seq.; Voigt, “Über die Bankiers,” &c., in Abhandl. d. K. S. Gesellschaft d. Wissenschaften (1887), x. 515 seq., and adverse review of this work by Niemeyer in Z. d. Sav. Stift. (1890), xi. 312 seq.; Karlowa, Röm. R. G. ii. 746-57; Mitteis, Z. d. Sav. Stift. xix. 230 seq.
- ↑ The literature on the history of the contract of sale is profuse, but mostly scattered in periodicals and much of it fragmentary. It may be enough to refer to Bechmann, Der Kauf nach Gemeinem Recht (3 vols., 1876, 1884 and 1905); Karlowa, Röm. R. G. ii. pp. 611-32; Girard, Nouv. Rev. historique (1883), pp. 539 seq., and in his Manuel, 4th ed. pp. 533 seq.
