Written contracts

Question 1

General

Answer 1

Knowledge of the Roman written contract – expensilatio or nomina transcripticia- is essentially all from G’s account and Theophilus’s account
- Seemed to exist well before the end of the legis actio period
- But had become long obsolete by J’s time – no mention of it in Digest or Institutes

Question 2

In the republic

Answer 2

• The head of a household would keep his receipts and outgoings – that were noted in a daybook (adversaria) – in his ledger (codex accepti et depensi)
• The obligation literis (by writing) was created by an entry in the ledger of an advance alleged to have been the debtor, the entry imposing the duty upon him
• The entry was the obligation – unilateral and stricti iuris
• But the entry had to be distinguished from records taken from the adversaria (notes) of actual receipts and disbursements
• The obligation could only be for a sum of money
• So was enforceable by the actio certae pecuniae creditae
• The obligation could not be conditional

Question 3

availability of the contract literis

Answer 3

was the topic of a school debate
- Proculians – exclusive to cives
- Sabinians – only cives could be creditors – but peregrines could be debtors where transcription was a re in personam

Question 4

Rise in banking in relation to written contracts

Answer 4

• Saw a decline in households keeping records – bankers did it instead
• Literal contract survived among bankers into late classical times
• BUT increasing importance of the cautio in stipulatio - contributed to its decline
• It was already unknown to a 4th century writer