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CHIRO´GRAPHUM

CHIRO´GRAPHUM the Latin equivalent of the Greek word χειρόγραφον, means, in its original and widest sense, a document in the handwriting of a person interested in the truth of the facts contained in it: it is used in this general sense by Cicero without reference to legal transactions (cf. Cic. ad Att. 2.20, 5; Phil. 2.4, 8); it was, however, a means of securing evidence against a debtor (cf. Cic. ad Fam. 7.18, “cautionem chirographi mei” ), and so it came to signify specially a written acknowledgment of a debt. In Cicero's time the usual term for an instrument which contained an acknowledgment of a debt, was not chirographum, but syngrapha (συγγραφή) (Cic. pro Rabir. Post. 3; de Har. Resp. 13 ; Phil. 2.37, 95 ; ad Att. 5.21, 11, 6.1, 2). Syngraphae appear to have been common securities for debts in the provinces, and were of Greek origin. According to the statement of the Pseudo-Asconius (ad Cic. in Verr. 2.1, 36), a syngrapha was a particular kind of chirographum; it differed from other chirographa in that a debt acknowledged in it was presumed to exist, whether there had been any real value received or not, whereas other chirographa were not binding unless they were acknowledgments of actual debts for money received. Hence, if Asconius is to be believed, the syngrapha was a written obligation, but the mere chirographum was not. Asconius points out as another characteristic of syngraphae, that they were executed by both parties, not simply by the debtor, and that they were taken charge of for both parties instead of creditors having the exclusive right to their custody.

The distinction made by Asconius between the legal effect of syngraphae and chirographa is shown by the superior authority of Gaius (3.134) not to be well founded. It is thought that Asconius-who, as Niebuhr has shown, cannot have written earlier than the fourth century--misunderstood the allusions of Cicero to syngraphae, and so attached an exceptional importance to them (Savigny, Verm. Schr., vol. i. d<*> Litt. Obl.). Gaius, in the passage above referred to, after describing the Roman literal contract, which was made by transcriptive entries in a family account book (codex), proceeds to say: “There appears to be another literal obligation created by chirographa and syngraphae, which were written acknowledgments of debts or promises to pay, unaccompanied by stipulation, a mode of contract proper to aliens.” According to the ordinary interpretation of this passage, Gaius is here referring to particular forms of contract current among aliens. Gneist, however, supposes that Gaius is pointing to a general distinction between Roman and Greek law. In Roman law a written agreement was not actionable in itself, but only evidence of a stipulation having been entered into. In Greek law, on the other hand, informal written agreements were enforceable; so Gaius intends to say in this passage, that among aliens any written acknowledgment of a debt was actionable without a stipulation. This principle of Greek law, if it was one, was never adopted into Roman. In the legislation of Justinian the term syngrapha does not occur; and chirographum does not mean, as in the above passage of Gaius, a written contract, but is equivalent to cautio, an evidentiary document containing the terms of a stipulation or loan or a receipt on account of payment of a debt. The words instrumentum and epistola are used in a similar sense. But though a cautio or chirographum of a debt was not binding as a contract, its existence was presumptive evidence of a debt, if the debtor allowed it to remain in the creditor's hands for a certain period. Justinian in his Institutes (3.21) goes so far as to say, that after the prescribed period the debtor is bound by his writing; but the accuracy of this statement is much questioned. So again a chirographum of a stipulation was presumptive evidence of a stipulation having been entered into (Inst. 3.19.12).

Precautions were taken for securing such documents as chirographa against falsification [CAUTIO ; FALSUM]. The formal requisites, if any, for the validity of chirographa. and syngraphae cannot be determined. According to Gneist, the word συγγραφὴ did not signify among the Greeks any particular form of written contract, since the words συνθήκη and συμβόλαιον are used as synonymous with it; it was usual, however, to seal obligations in writing and to entrust them to a third party. At a later time the word χειρόγραφον, especially in its Latin form, came to be used; but between syngraphae and chirographa, Gneist thinks, there was no essential difference, both being documents of an informal character, not requiring seals or the attestation of witnesses as essentials to their validity. It seems probable that at one time the syngrapha was a common act of creditor and debtor; but a chirographum might be the act of the debtor alone. If it could be supposed that a passage extracted by Heimbach from the MS. of a dictionary written in the 13th century rested on any early authority, there would be some analogy between [p. 1.412]the form of a syngrapha and an old English deed of indenture. The extract is as follows:--“Nota, quod chirographus et syngraphus saepe accipitur indifferenter. Differunt tamen proprietate, quod chirographus dicitur conscriptio manuum seu cautio, quae fit propria manu debitoris et committitur creditori; syngraphus dicitur conscriptio in duorum scilicet scripto. Antiquitus enim creditor et debitor insimul in ligno vel in charta scribebant et nomen debitoris et nomen creditoris et testes et summam pecuniae; et in medio hoc sibi syngraphum capitalibus locis et per medium dividebant. Postea si creditor plus exigeret, quam deberet, vel si debitor denegaret depositum, uterque afferebat partem, quam habebat, ut duae partes convenirent, et id propterea syngraphum dictum est. Syngraphus et dicitur nomen aliquod vel scriptura in re aliqua confirmanda scripta. Sic in cartis publicis omnino non usus tantum scribit, sed plures, ad confirmationem chartae.” (Heimbach, Creditum, § 520.) (Gneist, Die Formellen Verträge; Heimbach, Creditum, § 498, &c.; Walter, Gesch. des Röm. Rechts, § § 606-608; Puchta, Inst. 3.274; Danz, Lehrbuch der Gesch. des Röm. Rechts, § 60; Savigny, Verm. Schriften, vol. i. de Litt. Obl.

[E.A.W]

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