§ 81. a nomen transscripticium was an item entered with the concurrence of both parties concerned: it was founded on agreement, and its effect was to create a legal liability. The term 'expensilatio' was applied to entries of both kinds. In point of form, the nomen arcarium and the nomen transscripticium were alike entries of a payment. The question therefore arises: what was there to distinguish one kind of expensilatio in the codex from the other? That is precisely the question as to which we have no certain information and accordingly the truth can only be conjectured. The most important clue for determining the character of the fictitious expensilatio which constituted the literal contract of Roman law is to be found in the term nomen transscripticium. A nomen arcarium consisted of a simple entry, a nomen transscripticium-as the word indicates-involved some process of 'writing over.' It is most probable that in the case of a nomen transscripticium, the expensum (on the pagina expensi) was an item 'written over,' 'transcribed,' from the other side of the cash-book, the pagina accepti-we know for a fact that the codex was kept on a definite outward system according to acceptum and expensum—whereas' in the case of a nomen arcarium, the expensilatio was really nothing more than an expensilatio, i. e. an independent entry of a payment on the pagina expensi. In other words, an expensilatio 'transscripticia,' or literal contract, presupposed the existence of an obligation quite independent of the codex-an obligation based on a sale, or loan, or what not-and the object of the parties was to transform this pre-existing obligation into a literal obligation, i. e. into one based on the 'literae,' or writing, in the codex as such. The procedure adopted was somewhat as follows: the creditor made an entry to the effect that the obligation in question had been cancelled by payment, i.e. he entered the sum due (on the pagina accepti) as received, and, at the same time, he made a second entry on the other side of the book-an expensilatio-debiting the other party with the amount in question, i.e. he entered that amount (on the pagina expensi) as paid out to the debtor. The acceptilatio had thus been 'transcribed' into an expensilatio, and it was an expensilatio of this kind-an entry 'transcribed' from the pagina accepti, a nomen

transscripticium—that constituted the literal contract of Roman law. § 81. A nomen arcarium was merely a simple entry of an acceptum or an expensum; a literal contract, on the other hand, consisted of a combination of two kinds of entries, an acceptilatio and an expensilatio, the combination being effected by means of 'transcribing' the acceptilatio into the expensilatio. The practical result of a literal contract was that an actual concrete obligation, existing quite apart from the codex, was cancelled by means of a fictitious receipt (acceptilatio), and, at the same time, another obligation was constituted, based on a fictitious loan (expensilatio): what was previously due under a contract (say) of sale was henceforth due by virtue of a 'loan.' The literal contract of Roman law was a fictitious loan which operated by virtue of the 'literae'-i. e. by virtue of the writing in the codex as such, irrespectively altogether of the facts actually underlying the relations between the parties-to impose on the debtor an abstract liability to pay a fixed sum of money'.

If this view is correct, it follows that a literal contract was employed in Roman law, not for the purpose of originating an obligation, but solely for the purpose of transforming an existing obligation into one based on an entry in the codex. As in the case of a stipulatio, so here, the object of thus transforming an obligation might be to effect a change (1) in the parties (transscriptio a persona in personam), or (2) in the ground of the obligation (transscriptio a re in personam).

Just as a literal obligation could only be produced by a written entry (expensilatio), so, in the early law, it could only be extinguished

The view expounded in the text is based on the arguments of Keller in Sell's Jahrbuch f. historische u. dogmatische Bearbeitung d. röm. Rechts, vol. i. (1841), p. 93 ff., and in his Institutionen (1861), p. 102 ff. As to Keller's theory see also Mitteis, ZS. d. Sav. St., vol. xix. (1898), pp. 242, 243.-There is no doubt that the Komans were in the habit of keeping other kinds of books besides the codex accepti et expensi. There was, for example, the kalendarium, or liber kalendarii, in which an account was kept of moneys lent out at interest (the name 'kalendarium' was

due to the fact that, in Rome, interest
was paid, as a rule, on the first day of
every month, the 'kalendae'), and there
were other books for registering the
facts concerning the paterfamilias'
general proprietary position, the object
of the codex accepti et expensi as such
being merely to record his cash_trans-
actions. It was customary to make
a preliminary entry in a rough day-
book or waste-book (adversaria, ephe-
meris), before making the entry in the
codex accepti. Every month these
entries were posted from the day-book
into the codex.

§ 81. by an act of cancelling (acceptilatio, cp. § 89 I. 1). Acceptilatio in the codex accepti et expensi (i. e. a 'literal' acceptilatio) was the counterpart of expensilatio. The creditor made an entry to the effect that the money had been paid by the debtor, in other words, he entered the money as received (acceptum ferre). The effect of this entry was to cancel literis the obligation which had been previously created literis (by the expensilatio). The entry did not necessarily imply that the debtor had actually paid the money. Like expensilatio a 'literal' acceptilatio was the record of a legal relationship. It meant that the debtor was discharged from his debt, and it accomplished the discharge by the act of cancelling— the acceptilatio in the codex-as such; that is to say, literis. Thus a literal acceptilatio might also be employed for effecting a contract of release. But it was only a literal obligation that could be discharged by means of a literal acceptilatio. In order that such an acceptilatio might extinguish an obligation, it was necessary that the latter should have been created by a prior expensilatio. An acceptilatio in the codex accepti et expensi, which was not based on a prior expensilatio, was merely the record of a fact, and did not constitute a juristic act❜.

In the course of the Empire the literal contract fell into disuse. Stipulatio thus became the only means by which the novation of an obligation could be effected, or by which a consensus, in itself not actionable, could be rendered actionable 3.

2 It is to be observed that the same principle underlies the case of a nomen transscripticium, where the essence of the juristic act is to be found, not in the acceptilatio-the entry that the money due (say) on a sale has been receivedbut in the expensilatio, i. e. in the nomen transcribed from the other side of the codex. An entry stating that a sum due in respect of some other transaction (e. g. a sale) has been received, is never, taken by itself, anything more than a nomen arcarium, or cash item. In order to constitute a juristic act, an acceptilatio must be an entry 'transcribed' from an expensilatio; it must be, in that sense, a nomen transscripticium.

Greek law had gradually developed

a literal contract of its own, which was
concluded by means of a bond called
'syngraphe' or 'chirographum.' As a
rule a syngraphe was a written docu-
ment purporting, on the face of it, to be
an acknowledgment of the receipt of
a loan, which loan, however, was in fact
fictitious. The liability of the debtor
was based entirely on the bond he had
executed, just as, in modern law, liability
on a bill of exchange is based entirely
on the bill itself. It is to this feature of
the Greek contract that Gajus (iii. § 134)
refers: Praeterea litterarum obligatio
fieri videtur chirographis et syngraphis,
id est, si quis debere se aut daturum se
scribat; ita scilicet si eo nomine stipu
latio non fiat, quod genus obligationis
proprium peregrinorum est. In con-

GAJ. Inst. III § 128: Litteris obligatio fit veluti nominibus § 81. transscripticiis. Fit autem nomen transscripticium duplici modo: vel a re in personam, vel a persona in personam. § 129: A re in personam transscriptio fit, veluti si id quod tu ex emptionis causa aut conductionis aut societatis mihi debeas, id expensum tibi tulero. § 130: A persona in personam transscriptio fit, veluti si id quod mihi Titius debet, tibi id expensum tulero, id est, si Titius te delegaverit mihi. § 131 eod.: Alia causa est eorum nominum quae arcaria vocantur: in his enim rei, non litterarum obligatio consistit ; quippe non aliter valent quam si numerata sit pecunia; numeratio autem pecuniae re facit obligationem. Qua de causa recte dicemus arcaria nomina nullam facere obligationem, sed obligationis factae testimonium praebere.

§ 82. Consensual Contracts.

In certain cases Roman civil law acknowledges an exception to § 82. the rule that a bare obligatory consensus is not actionable. In

sequence of the extension of the Roman franchise and, with it, of the Roman civil law to the entire Empire by Caracalla (p. 181), the Greek law of syngraphae was displaced by the Roman law of stipulationes; that is to say, the rule which till then had obtained in the West-viz. that an abstract promise, operating of its own force to impose a legal liability on the promisor, could only be validly made by means of an oral stipulatio-was now extended to the Eastern or Greek portion of the Empire. Nevertheless, the influence of Greek legal habits survived, and found expression in the ever-increasing importance that came to be attached to the 'cautio,' or written memorandum, which was usually drawn up in connexion with the oral promise. If the plaintiff produced a written memorandum to the effect that stipulatus est Maevius, spopondi ego Lucius,' a legal presumption was thereby raised that the oral stipulatio had been duly carried out, and the only way in which, in the law of Justinian, the defendant could rebut such a presumption was by showing that one of the parties concerned

had in fact been absent all day from
the place where the stipulatio was
alleged to have been concluded, and
that it was consequently impossible that
the requirements of an oral stipulatio
should have been complied with. The
underlying principle therefore remained
the same as before: it was not the
memorandum (the literae), but the
stipulatio (the verba) that constituted
the essential foundation of the debtor's
liability. But in the great majority of
cases this principle was only saved by
the help of a fiction. As a matter of
fact the provisions of the Corpus juris
itself show that Roman law had already
gone some way towards abandoning the
law of verbal contracts in favour of the
system traditionally employed by the
Greeks from the oldest times in their
legal transactions, the system namely of
utilizing written acknowledgments of a
debt for the purpose of effecting bind.
ing agreements.-An instructive account
of this subject is to be found in Mitteis,
Reichsrecht u. Volksrecht in den öst-
lichen Provinzen des röm. Kaiserreichs
(1891), p. 459 ff.

$82, these cases the rule accordingly is: consensu contrahitur. Roman civil law recognized four such consensual contracts, viz. : sale, hire, partnership, mandatum.

1. Emtio Venditio, or Purchase and Sale.

Sale is a contract whereby one party (the vendor) binds himself to deliver a thing, and the other party (the purchaser) binds himself to pay a sum of money, called 'the price.' The contract is valid the moment the parties are agreed in regard to the thing to be delivered and the price to be paid. It requires neither form nor one-sided performance. It is this that distinguishes sale, according to Roman law, from exchange (supra, p. 398)'. Sale is a bonae fidei negotium, i. e. both parties are not merely bound to do what they

The practical difference between sale and exchange-the latter being in modern law, like sale, a consensual contract-consists in the fact that a contract of sale imposes on one of the parties (the purchaser) an obligation to pay money and on the other (the vendor) an obligation to deliver a thing, whereas a contract of exchange binds both parties alike to deliver a thing. Now a money obligation means, as already explained (Appendix to § 75), an obligation to pay a sum of money (i. e. a certain quantum of value), and, as such, it must be carefully distinguished from an obligation to pay any particular coins. A purchaser, then, is only bound, as such, to pay a sum of money; he is never bound to pay any particular coins. If the agreement was that the thing bought should be paid for in coins of a specified kind-say, in sovereigns or in particular foreign coins-the transaction would be an exchange, not a sale. And conversely: the vendor is never bound to pay a sum of money, but it is quite possible that he may be bound to pay particular coins. There is no reason why money-in the shape, namely, of specific coins, whether coins of the country or foreign coins-should not be bought, but it is impossible to buy a sum of money. Accordingly where coins are the subject-matter of a transaction, the question whether the latter is a sale or an exchange will depend on the nature of what is to be given in return. If

I desire to acquire a sovereign piece and bind myself to pay twenty shillings value for it, i. e. to pay a sum of twenty shillings (which I can do in any silver coins-shillings, florins, half-crowns, &c.-I choose), the transaction amounts to a purchase of the sovereign piece. If, on the other hand, I bind myself to pay (say) twenty one-shilling pieces or ten two-shilling pieces for the sovereign, if, in other words, the coins to be given by me are specifically determined, the transaction would amount to an exchange. The same distinction of course holds good where money is changed at a banker's. A transaction between a money-changer and his customer is primâ facie a sale, because one party has to pay a sum of money and the other has to deliver coins of a particular kind, e.g. twenty-franc pieces. It is obviously inaccurate therefore to speak of a sale as consisting in the delivery of a thing in return for money, or to lay stress on the giving of' money by one party as being the characteristic feature of sale as distinguished from exchange. What does distinguish sale from exchange is rather the fact that in a sale the thing is delivered in return for a sum of money-it is this that constitutes the essence of what we call the 'price'-and that the obligation of the purchaser consists in the payment of money' in the sense only of making over a certain quantum of value.