EXCURSUS VIII.

THE ROMAN LITERAL CONTRACT AND ITS HISTORY.

THE true old Roman literal contract, or expensilatio, which apparently began to be disused soon after the fall of the Republic, was concluded by the creditor's making, with the debtor's assent, an entry in his domestic account-book or ledger (codex, tabulae) of so much as advanced by him to the latter (expensum ferre), the transaction thus appearing as a loan actual or fictitious. Such a written entry was not mere evidence of a contract binding on some other ground-res, verba, or consensus: by itself it laid the debtor under a legal obligation to repay the sum in question: 'in nominibus alius expensum ferendo obligat' Gaius iii. 137. There are at least two passages (Cic. ad Att. 4. ep. 18, Valerius Maximus 8. 2. 2) which prove that expensilatio was a mode of creating a new and original obligation. But it seems most ordinarily to have been employed for the purpose of novation (Bk. iii. 29. 3), when it was called transcriptio, and the entry 'nomen transcripticium' Gaius iii. 128: and in the form transcriptio a persona in personam (veluti si id quod mihi Titius debet, tibi id expensum tulero' Gaius loc. cit.), it must among business men have been of great value in the simplification and settlement of outstanding accounts. The main object of transcriptio seems to have been the substitution of a strict civil law for a iuris gentium contract; or, as Mr. Poste puts its, 'to metamorphose claims recoverable by actions ex fide bona, e.g. locati conducti, empti venditi, which in many points favoured the defendant, into debts recoverable by the short and sharp remedy of the civil action of condictio, which, when brought for certa pecunia credita, was the more formidable to a dishonest litigant, as it was accompanied by a sponsio poenalis, whereby the vanquished party forfeited a third of the sum in litigation, in addition, if he was the defendant, to the original claim.' That this was its main use seems more than probable on a priori grounds, for it is clear that if 30l. are due to a man on a sale (e.g.), he will prefer to secure by novation a remedy by which he can recover 40l.; and the conclusion is made absolutely certain by a consideration of the only case in which

a iuris gentium contract was not 'novated' by entry in the codex. Gaius tells us (iii. 131) that the entry of a genuine money loan left the transaction a mutuum or real contract, though known by the specific name of nomen arcarium. The explanation of this seeming anomaly is that the remedy on mutuum alone of all the real and consensual contracts was always condictio: and as consequently novation of a mutuum by transcriptio could give the creditor no advantage which he did not possess already, its entry in the ledger did not alter the 'causa' of the obligation, but served only as evidence, Gaius loc. cit.

Expensilatio, as has just been remarked, was a formal civil law contract, confined to Roman citizens, though the Sabinians had held that for transcriptio a re in personam at least might be used also by peregrini. We learn, however, from Gaius that the latter had a form of literal contract of Greek origin peculiar to themselves, viz. the chirographa and syngraphae, species of bonds of which the former were signed by the debtor only, while the latter were executed in duplicate, and signed by both parties. It seems clear, from the passage referred to (iii. 134), that, unless made merely as evidence of a stipulation, these had binding force for peregrini in themselves, though they would not have bound citizens: or, as Savigny says (verm. Schriften i. p. 246), it was law in the provinces, as contrasted with Rome, that any formless document attesting an agreement was actionable.

Asconius, the early commentator on Cicero, observes (in Verr. 2. I. 23) that in his time the codex, and with it expensilatio, had gone out of use except among bankers (argentarii), who, as might have been expected, continued longer to keep their books in the old Roman fashion, though Justinian says in Bk. iii. 21, that in his own day such entries, even supposing them to have still been made, had ceased to create obligations. Whether it be true or not, as Asconius (confirmed by Eusebius) says himself, that he wrote about the middle of the first century of our era, the commentary on the Verrine orations is of so different a character from the rest that Savigny and Niebuhr may be right in ascribing it to a rédacteur of the fourth century, in which case the fact that Gaius describes literal contract as apparently in full operation need create no difficulty. Perhaps, indeed, as was first suggested by Schüler, the disappearance of nomina transcripticia is to be ascribed to the introduction of constitutum, which, instead of novating the preexisting obligation, added to it a fresh one upon which the creditor, if successful, would recover an even heavier penal sum than he would by condictio certi (p. 415 supr.), and which was superior to them in its simplicity and formlessness.

But, even long before the time of Gaius, the character of expensilatio (with which, as a formal contract, stipulatio may be coordinated) had been vitally altered. These two contracts had for centuries resembled the English Deed in imposing an obligation by their mere form: once made, the debtor was bound, and must pay, whether he had or had not received the consideration for which he purported to have made the promise or consented to the entry, and even though his promise or consent had been obtained by duress, fraud, or misrepresentation. Some time, however, before Cicero, a praetor by name Cassius (Dig. 44. 4. 4. 33), had introduced the exceptio doli mali, by which a man, when sued on a formal contract vitiated by want of consideration or of good faith generally, was enabled to repel the plaintiff. In contracts which were bonae fidei such a formal plea was unnecessary: for 'doli exceptio inest bonae fidei iudiciis' Dig. 24. 3. 21; and in a condictio brought on a mutuum the defence of no consideration would be a direct traverse of the plaintiff's right, upon whom consequently would fall the burden of showing that the money had in point of fact been advanced to the defendant. Mr. Poste (Gaius p. 389) seems to think that the exceptio doli was not universally pleadable to condictiones until the time of Marcus Aurelius; but the passage in the Institutes (Bk. iv. 6. 30) upon which this supposition is based relates only to the application of this plea in the introduction of a set-off (compensatio) in such suits. It is obvious that Cassius' innovation entirely changed the material character of stipulatio and expensilatio. Ostensibly, they continued to bind in virtue of their form alone: practically, as fraud, absence of consideration, etc. would enable the promisor, by pleading exceptio doli, to defeat any action brought against him by the other party, they were 'transformed into real contracts, the obligation of the promisor depending on the performance of the promisee (re), that is, on the execution by the promisee of his part of the consideration, not on the solemnity of the spoken words (verbis) or written documents (literis)."

Eventually, when the defendant's plea was in effect that the promised pecuniary consideration, by which his own promise had been obtained, had not, in point of fact, been given (i.e. when it was in factum composita), it came to be called the exceptio pecuniae non numeratae, which Justinian says in the Code is a species of the exceptio doli, with which indeed it is in Cod. 4. 30. 3 actually identified: cf. notes on Bk. iv. 13. 1 and 2 inf. From a comparison of Gaius iv. 116 with those paragraphs it would seem that the new name had not yet been given in the former's time. Upon the plea of pecunia non

numerata being entered by the defendant, the onus probandi, contrary to the ordinary rule, lay upon the plaintiff: 'si ex cautione sua, licet hypotheca data, conveniri coeperis, exceptione opposita seu doli seu non numeratae pecuniae, compellitur petitor probare pecuniam tibi esse numeratam: quo non impleto absolutio sequetur' Cod. 4. 30. 3.

To an action on a genuine oral stipulation the exceptio could be pleaded at any length of time from the date of the alleged transaction. But in the Eastern portion of the empire, at any rate, the syngrapha or chirographum of the provincial, losing its old meaning, seems gradually to have been blended with the stipulation: it became more and more the practice, as might be inferred from Bk. iii. Tit. 19. 12. and 17, and Tit. 20. 6, to express stipulations in a written memorandum, cautio, which (as we have seen) was taken to prove, in the absence of clear testimony to the contrary, that the parties had been present, and the interrogative form observed, Paul. sent. rec. 5. 7 2, Cod. 8. 38. 14. 2. But from the expression in Bk. iii. 21 'cessante scilicet verborum obligatione,' which obviously is meant to correspond with the 'ita scilicet si eo nomine stipulatio non fiat' of Gaius iii. 134, it seems clear that Justinian was there referring to cautiones or written acknowledgments of loans or transactions in the nature of loans (mutua), which, like a stipulation oral or written, were ground for a condictio. What is said in Bk. iii. 21 may, however, be taken to apply to cautiones of both kinds, whether acknowledging a loan, or professing to attest or be a stipulation, in which a sum of money was promised. Persons who were so careless as to put their names to such memoranda without having received the consideration for which they purported to have been given, were at first allowed to plead the exceptio only within one year from their date: this was extended by M. Aurelius (Cod. Herm. 1) to five years, which Justinian, as he says in Bk. iii. 21, again reduced to two. After this interval-in the language of that passage, dum queri non potest-the cautio was accepted as presumptive evidence that the money had been advanced, or other consideration given, so that the defendant might be said, in a sense, to be literis or scriptura obligatus; for, assuming the transaction to have been a mutuum and not a stipulation, the ordinary rules of proof were reversed: the plaintiff had not to prove that he had lent the money, but the defendant had to prove that he had not. But persons who had incautiously given such notes would still have been largely at the mercy of their holders, had the latter been able to wait till the interval, within which the exceptio could be pleaded, had elapsed, and then to sue with the advantage of having shifted the onus probandi

on to their opponents. To prevent this the former could either bring condictio ob causam datorum, compelling the holders to prove the alleged consideration, or in default to deliver up the memoranda (Cod. 4. 30. 7), or protest in the acta of a court against their validity, or. make their exceptio perpetual by serving a formal written notice on the creditor, Cod. ib. 14. 4.

Justinian, before whose legislation the exceptio pecuniae non numeratae could be used only where default had been made in the advance of money by the plaintiff, gave it a larger scope by allowing it also where the alleged consideration was the conveyance of other things in contractibus, in quibus pecuniae vel aliae res numeratae vel datae esse conscribuntur, non intra quinquennium, quod antea constitutum erat, non numeratae pecuniae obicere possit, qui accepisse pecunias vel alias res scriptus sit, vel successor eius, sed intra solum biennium continuum' Cod. 4. 30. 4. pr. Justinian's attempt to pass off the 'cautio' as a 'literal' contract, which is due merely to the habit of reproducing, if possible, the arrangement and terminology of Gaius, is forced and unhappy: the notion of an obligation arising simply literis does not appear elsewhere in the Corpus iuris, except so far as the use of scriptura and literae in Dig. 44. 7. 2. 1; ib. 38, and 46. 2. 17 may be regarded as a reminiscence of the old expensilatio.