OBLIGATIO LITTERARUM
OBLIGATIO LITTERARUM One of the four modes in which, according
to Gaius (3.89), contractual obligations could be incurred, was
litteris. The contract was made by the creditor's
entry (Gaius, 3.137) of so much as
expensum to
the debtor in his account book (
codex accepti et
expensi). The debtor's assent to the entry was necessary (
Cic. pro Rosc. Com. 1, 5;
V. Max. 8.2,
2), but. apart from that it was immaterial whether he had in fact
received the money or not. For the practice of accurate book-keeping, which
the Romans very possibly adopted from the system of the bankers in the Greek
cities of Campania, reference may be made, in addition to the passages last
cited, to
Cic. in Verr. 1.23,
60;
39, 99;--
2.76, 186--
pro Quint. 4, 11;
pro
Font. 3, 15;
pro Cluentio, 30, 82; and
Pliny,
Plin. Nat. 2.7. 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,
Cic. in Verr. 1.36, 92;
39,
102;
--ad Att. 4.18; Seneca,
de Benef.
3.15) 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 (3.131) that if an entry were made in the codex of an
actual money loan, the obligation to repay it
arose
re (
MUTUUM), 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 (
Cic. Att. 4.1. 8;
V. Max. 8.2,
2). But
it seems clear that the most common purpose for which Expensilatio (as the
contract is termed) was used was that of novation (
inf. p. 259): and there were two modes in which an obligation could be
novated
litteris. By the first (
“Transcriptio a re in personam,” Gaius, 3.129) a debt owing
on some other ground, such (e. g.) as consensual contract or legacy, might
be converted into a “literal” debt: for instance, an heir might
be given time to pay a legacy on the condition that the legatee should be
allowed to enter the money as
expensum to him.
The object of this, beyond a doubt, was to subject the strict action known
as
condictio certi, with its penal wager of a
third of the sum in dispute, for an action (usually
bonae
fidei) by which only the actual sum due could be recovered.
The old contract and the old action ceased to exist, their places being
taken by new ones more favourable to the creditor. The second form of
novation ( “Transcriptio a persona in personam,” Gaius, 3.130)
was employed where it was desired that money owed by one person to a second
should be owed to him by a third instead: thus, if A owed money to B, and it
was agreed that C should enter it in his codex as
expensum to A, C would become A´s creditor instead
of B. In a similar way one debtor could be substituted for another, the
creditor remaining the same.
Whether the “literal” contract could be entered into by aliens
was disputed between the Sabinian and Proculian schools of lawyers. The
latter held:that it was too peculiarly
juris
civilis to be available to them at all: the former thought that
they could be bound by it
a re in
[p. 2.254]personam, but not
otherwise (Gaius, 3.133). But Gaius says (ib. 134) that aliens had a kind of
literal contract of their own, differing from Expensilatio materially in
form, but similar to it in its operation. This was a species of bond
(
chirographa, syngraphae), signed by the
debtor, and acknowledging the debt, of Greek origin, as the names denote;
and it seems clear, from the language of Gaius, that the bond, like the
debt, was or constituted the obligation: it was not mere evidence, like the
entry of a
nomen arcarium.
Although Gaius speaks of Expensilatio as a form of contract actually existing
in his own day, there can be little doubt that it had gone out of use, along
with the regular keeping of accounts, among the generality of Roman
citizens, and was still in vogue only with bankers, who kept their
customers' accounts for them. Perhaps no explanation of this need be
required beyond the general decay of republican manners under the Empire;
but probably the disuse of the literal contract was connected with the
introduction of
constitutum, which secured all
the advantages of Transcriptio without the extinction of the prior
obligation, and still more with that of the
exceptio
dolt, which may be attributed with some certainty to Gallus
Aquilius, who was Cicero's colleague in the praetorship. The action for
breach of an obligation incurred
litteris was
stricti juris, and the law was that fraud
was no defence to an action of that kind, so that a defendant was helpless
whose consent to the creditor's entry had been obtained by
misrepresentation, or by an unfulfilled undertaking to advance money or give
credit in consideration of that promise being given. An anecdote told by
Cicero (
de Off. 3.14, § § 58-60) puts the
matter in a strong light. Pythius, a Syracusan banker, induced Canius to buy
a country-house from him by fraudulently inducing him to believe, on the
evidence of his own eyesight, that the estate and neighbourhood abounded in
spoils for the hunter and the fisherman. Knowing that a consensual contract
of sale would be radically vitiated by his dishonesty, honesty, he produced
his codex, and got Canius to assent to the debt being transcribed on the
spot. Canius, says Cicero, had no remedy, for his colleague Aquilius had not
yet introduced his
formulae de dolo. When
however that had been done, Expensilatio had virtually ceased to be a
contract binding through its form alone; and whenever there had been
anything in the nature of chicane or dishonesty on the creditor's part, he
could not but fail in his action.
The later history of the literal contract, and in particular of the so-called
“literal obligation” of Justinian's Institutes (3.21), is
intimately mately bound up with that of Stipulation, the contract made
verbis. In the Greek provinces of the
Empire the old oral stipulation of Rome, and the provincial chirographum or
syngrapha, appear to have become merged together in the written and signed
memorandum (
cautio, instrumentum), purporting
to attest a stipulation actually made by oral question and answer (Paul.
Sent. rec. 5.7, 2;
Inst. 3.19, 17). If
such a
cautio were obtained by the promise of a
pecuniary consideration, which in fact had not of the been given, it could
when sued upon be met by the “exceptio pecuniae non numeratae,”
a specific variety of the
exceptio dolt: and it was
enacted in 213 A.D. (Cod. 4, 30, 3) that when this plea was entered by the
defendant, the plaintiff should be bound to prove that the alleged
consideration had actually been given, unless a certain interval of time had
elapsed from the date of the document. It seems that when, in compiling the
Institutes, Justinian found that he had no genuine literal contract,
corresponding to the old Expensilatio, to describe, he thought the best
equivalent would be this
cautio purporting to
evidence a stipulation, and the kindred topic of the “exceptio
pecuniae non numeratae.” That this is the true significance of
the very difficult title (21) in the third book of the Institutes appears
clear on a careful examination of the passage in Gaius (3.134), upon which
it is obviously modelled, and in view of a later paragraph (4.13, 2) of the
Institutes themselves. But between the old contract, made by entry in the
codex, and the
cautio which Justinian put in
its place, there is the same radical difference that there is in English law
between a deed under seal and a mere written memorandumn of a contract. The
entry in the codex
was the contract; and if its
genuineness was not disputed, the party against whom it was made was
technically bound, though he might escape judgment by pleading the
exceptio doli. That the
cautio was not itself a contract, and never more than evidence of
an alleged contract made (expressly or impliedly) by stipulation, which
could be rebutted by counter-evidence that the alleged contract had never
been made at all, is placed beyond all reasonable doubt by the passage of
the Digest (
44,
7,
1,
2) in which the sources of
contractual obligations in Justinian's time are enumerated. In that passage,
which is taken from another work of Gaius, we read “obligationes ex
contractu ant re nascuntur aut verbis aut consensu:” and the
“aut literis” which Gaius no doubt originally wrote was
deliberately suppressed by the compilers of the Digest, so as to bring the
extract into agreement with the actually existing law of the day. (Savigny,
Verm. Schriften, 1.205
sq.;
Gneist,
Die formellen Verträge, 321
sq.; Rein,
Civilrecht, p. 677
sq.; Voigt,
Jus
Naturale, 4.74, and his treatise
Ueber die Bankiers, die
Buchführung und die Litteralobligation der
Römer; Keller,
Beitrag zu der Lehre von dem
röm. Literal-contracte in Sell, Jahrbücher 1;
Schüer,
Die literarum obligatio des älteren
röm. Rechts, 1842; Buonamici,
Sulle literarum
obligationes in diritto Romano, Arch. giurid. 16.3
sq.; Padeletti,
History of Roman Law,
ch. 21, note 6.)
[
J.B.M]