Latin
Ancient Law
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.389
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But although it is essential for the proper appreciation of the history of contract-law that the Stipulation should be understood to have been looked upon as a solemn form before it was recognized as a useful security, it would be wrong on the other hand to shut our eyes to its real usefulness. The Verbal Contract, though it had lost much of its ancient importance, survived to the latest period of Roman juris prudence; and we may take it for granted that no institution of Roman law had so extended a longevity unless it served some practical advantage. I observe in an English writer some expressions of surprise that the Romans even of the earliest times were content with so meager a protection against haste and irreflection. But on examining the Stipulation closely, and remembering that we have to do with a state of society in which written evidence was not easily procurable, I think we must admit that this Question and Answer, had it been expressly devised to answer the purpose which it served, would have been justly designated a highly ingenious expedient. It was the promisee who, in the character of stipulator, put all the terms of the contract into the form of a question, and the answer was given by the promisor. "Do you promise that you will deliver me such and such a slave, at such and such a place, on such and such a day?" "I do promise." Now, if we reflect for a moment, we shall see that this obligation to put the promise interrogatively inverts the natural position of the parties, and, by effectually breaking the tenor of the conversation, prevents the attention from gliding over a dangerous pledge. With us, a verbal promise is, generally speaking, to be gathered exclusively from the words of the promisor. In old Roman law, another step was absolutely required; it was necessary for the promisee, after the agreement had been made, to sum up all its terms in a solemn interrogation; and it was of this interrogation, of course, and of the assent to it, that proof had to be given at the trial --not of the promise, which was not in itself binding. How great a difference this seemingly insignificant peculiarity may make in the phraseology of contract-law is speedily realized by the beginner in Roman jurisprudence, one of whose first stumbling-blocks is almost universally created by it. When we in English have occasion, in mentioning a contract, to connect it for convenience' sake with one of the parties --for example, if we wished to speak generally of a contractor --it is always the promisor at whom our words are pointing. But the general language of Roman law takes a different turn; it always regards the contract, if we may so speak, from the point of view of the promisee. in Speaking of a party to a contract, it is always the Stipulator, the person who asks the question, who is primarily alluded to. But the serviceableness of the stipulation is most vividly illustrated by referring to the actual examples in the pages of the Latin comic dramatists. If the entire scenes are read down in which these passages occur (ex. gra. Plautus, Pseudolus, Act I. sc. I; Act IV. sc. 6; Trinummus, Act V. sc. 2), it will be perceived how effectually the attention of the person meditating the promise must have been arrested by the question, and how ample was the opportunity for withdrawal from an improvident undertaking.