This is what is meant by 'praescriptis verbis agere'-a proceeding $66. pr. I. quib. mod. re contrahitur obl. (3, 14): Re contrahitur The following examples will illustrate the manner in which the procedure pracscriptis verbis was adapted to different purposes. A delivers a thing to B for purposes of valuation (1. 1 § 2 D. 19, 5), or of inspection (1. 23 eod.). These being neither cases of depositum (because the thing is not delivered for safe custody) nor of commodatum (because it is not delivered for use), the plaintiff must proceed praescriptis verbis. Or again, if it is doubtful whether the facts of a case constitute a contract of locatio conductio (1. 23 D. 10, 3), and, if they do, whether it is a locatio conductio rei or a locatio conductio operis (l. 1 § 1 D 19, 5), the plaintiff must sue praescriptis verbis. În the same way proceedings praescriptis verbis must be resorted to where a donor wishes to enforce a trust expressly accepted by the donee in his (the donor's) favour (a trust, say, binding the donee to pay for the donor's maintenance), or where a person who, The vol. ix. p. 181). Gradenwitz has suc- $66. $67. qualitatis reddantur. Unde etiam mutuum appellatum sit, § 2 eod.: Item is, cui res aliqua utenda datur, id est commodatur, § 67. The Verbal Contract. The verbal contract of Roman law is Stipulatio. It arises 'verbis,' i. e. by the employment of words in a particular form, in the form, namely, of question and answer. The creditor asks the debtor : spondesne mihi centum dare? The debtor answers: spondeo. This form of sponsio was regarded as specifically Roman (i. e. as being juris civilis), and could only be employed, therefore, among Roman citizens'. But instead of saying 'spondesne,' the creditor As to the manner in which sponsio was developed from a religious act v. sup. p. 38, n. 13. The fact that such a sponsio originally only gave rise to a moral obligation (i. e. an obligation towards the gods), left its traces even in classical Roman law, where certain kinds of stipulationes, e.g. the stipulatio by which a betrothal was effected (v. inf. at the end of § 79) were not enforceable by action. might also use the word 'promittisne' or some similar term. And § 67. these latter forms were regarded as being juris gentium and could therefore be validly employed by aliens as well as citizens. In Justinian's law it is immaterial what words are used. All that is essential is that the obligatory consensus shall be established by a question on the part of the creditor and a corresponding answer on the part of the debtor. Given these conditions the contract is valid and actionable on the ground of the form in which the words are put, and it is immaterial whether the debtor received any consideration for his promise or not. All that the creditor need prove is that, as a matter of fact, the stipulatio was concluded. The debtor's obligation rests on the verba and on them alone. In consequence of this its peculiar nature stipulatio is employed to fulfil a twofold function, the function namely (1) of originating an obligation and (2) of transforming an obligation. I. Stipulatio as originating an obligation. Stipulatio serves the purpose of originating an obligation in so far as it is used to convert an informal promise into a formal one. An informal promise, as such, is not actionable according to the Roman law of contract (sup. p. 288). As soon however as it is clothed in the form of a stipulatio it becomes actionable. By means of a stipulatio any promise can be raised to the rank of a 'contract.' The following are examples in point: a stipulatio for the payment of interest, a stipulatio for the payment of a specified penalty, and the contract of suretyship. (1) Stipulatio for the payment of interest. If the debtor in a contract of loan gives an informal promise to pay interest, such promise is not actionable (sup. § 66). Whenever it is intended to bind a borrower, on receiving his loan, to pay interest, a second contract is needed over and above the real contract of mutuum, viz. the verbal contract of stipulatio. The creditor asks the debtor: Will you pay me such and such monthly interest?' The debtor answers in the affirmative. He is now under an obligation to pay interest, an obligation which is actionable, not indeed re (for the contract of loan cannot create any obligation to pay interest), but verbis. The Romans were in the habit of calculating interest by § 67. the month, though it does not follow that it was paid by the month. The rate of interest is expressed as follows: centesimae usurae = 1 per cent. per month or 12 per cent. per ann. The interest' stipulated' for is not allowed to exceed a certain limit. The Twelve Tables fixed the maximum at of the capital (foenus unciarium). This was subsequently reduced to of the capital (foenus semunciarium). From the close of the republic centesimae usurae became the usual legal maximum. Justinian finally fixed semisses usurae-apart from one exception-as the highest allowable rate of interest in all cases. Anatocismus, or the payment of interest upon interest, is forbidden. A stipulatio for the payment of interest is void to the extent to which it exceeds the legal maximum. Arrears of interest can only be recovered to the extent of the capital debt, i. e. not'ultra alterum tantum.' (2) Stipulatio to pay a specified penalty. The stipulatio to pay a specified penalty was of considerable practical importance in Roman law. It was resorted to in all cases where a direct civil law title could not be validly created, and yet the parties felt the need of a title which should be legally secure (cp. e. g. the case of servitudes, sup. p. 264). (3) Suretyship (Fidejussio). A contract of suretyship is a contract whereby a man binds himself to be personally answerable (i. e. answerable with his own credit) for the debt of another, as accessory debtor, in addition to the person principally liable. Here again an informal promise to the 2 In the oldest times the 'vadimonium' served the purposes of a suretyship. Vadimonium was a solemn promise to pay a specified penalty, if a certain third party failed to meet a particular obligation (e. g. to pay a debt or answer a summons before court). A 'vas' is not a surety in our sense of the word, because the liability he undertakes is not the same as that of the principal, but is a new liability with different contents; cp. Voigt, Die Zwölf Tafeln, vol. ii. p. 490 ff. On the other hand sponsio (which originated in the religious vows of the earliest times, v. note 1) is a suretyship in our sense of the term (idem dare spondes?). And when the forms of stipulatio were further developed, another kind of suretyship grew up side by side with sponsio, viz. fidepromissio (idem fidepromittis?). Sponsio, whether used for purposes of Hence the forms of § 67. centum, quae Titius same effect would have been void at civil law. Suretyship is a species of so-called 'intercessio.' suretyship or any other purpose, is invariably juris civilis; fidepromissio, on the other hand (like fidejussio), is also open to aliens. The youngest form of suretyship, and one which was, from the very outset, secular in character, is probably fidejussio (idem fide tua esse jubes?). Fidejussio (which is discussed in the text) is the only form of suretyship known in Justinian's law. Formally speaking, it implies neither a sponsio nor a promissio, but merely, in the most general way, a desire (jussio) that the principal debtor shall be given credit on the faith of the credit of the surety. Hence fidejussio was applicable to any liability (including e. g. a liability ex delicto), whereas sponsio and fidepromissio were only applicable to liabilities arising from a verbal contract (stipulatio). Again, the liability of a sponsor or fidepromissor, being originally of a purely religious character (cp. Pernice, Berliner Sitzungsberichte, vol. li. p. 1191), did not pass to his heir, and was moreover limited to two years (by the lex Furia de sponsu, 345 B. C.). The liability of a fidejussor, on the other hand, passed to his heir, Intercessio and the action against him was an actio |