Obligatio Litterārum
One of the four modes of incurring contractive obligations was “by
letters” (
litteris,
Gaius, iii.
137). The contract was made by the creditor's entry in his account-book (
codex accepti et expensi) under the head of
expensum to the
debtor. To this entry the debtor's assent was necessary (Val. Max. viii. 2, 2), but he need
not actually have received the money. The items of receipt and expenditure appear to have been
entered without distinction, in the order of their occurrence, in a day-book (
adversaria), and transcribed at the end of each month into a ledger (
tabulae, codex accepti et expensi), the precise form and character of which is much
disputed, though most probably it was arranged in two sides or columns after the fashion of an
ordinary banker's pass-book. The entry in this ledger (
nomen facere) made
the contract, and bound the debtor to repay the specified sum: it was not merely evidence,
admitting of the possibility of rebuttal. We are told by Gaius (iii. 131) that if an entry
were made in the codex of an actual money loan, the obligation to repay it arose
re, not
litteris, and the debt was called specifically
nomen arcarium, the written record serving merely as evidence. It
follows that wherever a genuine money debt was created
litteris it must
have been under the fiction of a loan, as appears to have been the case in two instances of
debts originally incurred in this manner of which we have a record (
Ad Att. iv.
18; Val. Max. viii. 2, 2).
