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JUS CIVILE] morally but legally binding, so that much which previously had no other guarantee than a man's sense of honour now passed directly under the protection of the tribunals. Stipulations became the complement of engagements which without them rested simply on good faith, as when a vendor gave his stipulatory promise to his vendee to guarantee peaceable possession of the thing sold or its freedom from faults, and the vendee in turn gave his promise for payment of the price. The question and answer in the form prescribed by law made the engagement fast and sure. Hence the generic name of the contract; for Paul's derivation of it from stipulum, “firm” (which itself comes from stipes, a staff), is to be preferred to that of Varro and Festus from stips (money), or to a later and rather fanciful one from stipula (a straw). It was round the stipulation that the jurists grouped most of their disquisitions upon the general doctrines of the law of contract—capacity of parties, requisites of consent, consequences of fraud, error and intimidation, effects of conditions and specifications of time, and so forth. It may well be said, therefore, that its introduction marked an epoch in the history of the law.

There is, however, no certainty either as to the time or as to the manner of its introduction. So far as appears, it was unknown at the time of the compilation of the XII. Tables, at least in private life; one of the first unmistakable allusions to it is in the Aquilian law of about 287 The mention of it in that enactment, however, is with regard to a phase of it which cannot have been reached for many years after it had come into use; and the probability is that it originated before the middle of the 5th century of the city, its first statutory recognition being in the Silian law introducing the legis actio per condictionem (infra, p. 550). In its earliest days it bore the name not of stipulatio but of sponsio, for the reason that the interrogatory of the party becoming creditor was invariably formulated with the word spondes—e.g. centum dare spondes?—while the answer was simply spondeo.

There has been much speculation as to the origin of the contract. Modern criticism has three theories: (1) that it was the verbal

remnant of the nexum, after the business with the copper and the scales had gone into disuse; (2) that it was evolved out of the oath (jusjurandum or sponsio) at the great altar of Hercules and the appeal to Fides (supra, p. 534); (3) that it was imported from Latium, which it had reached from some of the Greek settlements farther south. The last view is the most probable, though there is much to be said also in favour of the second theory. Verrius Flaccus, as quoted by Festus, connects it with the Greek and ; and Gaius incidentally observes that it was said to be of Greek origin. A libation is frequently referred to by Homer and Herodotus as an accompaniment of treaties and other solemn covenants—a common offering by the parties to the gods which imparted sanctity to the transaction. Leist is of opinion that the practice passed into Sicily and Lower Italy, but that gradually the libation and other religious features were dropped, although the word was retained in the sense of an engagement that bound parties just as if the old ritual had been observed, and that it travelled northward into Latium and thence to Rome under the name of sponsio, being used in the first instance in public life for the conclusion of treaties, and afterwards in private life for the conclusion of contracts. The meaning of spondes as a question by a creditor to his debtor (although latterly, we may well believe, unknown to them) thus came to be: “Do you engage as solemnly as if the old ceremonial were gone through between us?” There are many examples of such simplification of terms, none more familiar than when a man says, “I give you my oath upon it,” without either himself or the individual addressed thinking it necessary that the form should be gone through.

It is not a little remarkable that the use of the words spondes and spondeo in contracting were, down at least to the time of

Gaius, confined in Rome to Roman citizens. The sponsio as a form of contract was essentially juris civilis. So at first were the later and less solemn forms of stipulation—''promittisne? promitto, fideipromittisne?'' fideipromitto. Gaius speaks of these latter, along with such simple forms as ''dabisne? dabo faciesne? faciam, as juris gentium'', i.e. binding even between Romans and peregrines. Such they became eventually, but peregrines probably could not make use of the stipulation until a good while after the lex Silia. Yet although juris civilis, both the sponsio and the later forms were

from the first free from many of the impediments of the earlier actus legitimi. No witnesses were required to assist at them; and they were always susceptible of qualification by conditions and terms. It was long, however, before parties had much latitude in their choice of language; spondeo was so peculiarly solemn that no equivalent could be admitted; and even the later styles may be said to have remained stereotyped until well on in the Empire. And it was the use of the words of style that made the contract. It was formal, not material; that is to say, action lay upon the promise the words embodied, apart from any consideration whether or not value had been given for it. In time this serious disadvantage was abated by praetorian exceptions and otherwise, as will be noted below. Originally the stipulation was employed only in regard to engagements whose terms were in every respect definite and certain, and was enforced by the legis actio per condictionem, or sometimes possibly by actio sacramento in personam. But in time it came to be employed in engagements that were from the first indefinite. This seems to have been due to the intervention of the praetors, and to have received special impetus after the system of the legis actiones had begun to give place to that per formulas. The remedy in such a case was not spoken of as a condiction but as an actio ex stipulate.

The Legis Actiones generally. —We owe to Gaius the only connected (though, owing to the state of the Verona MS., rather fragmentary) account we possess of the legis actiones, as the system of judicial procedure was called which prevailed in Rome down to the substitution of that per formulas by the Aebutian and Julian laws—the first either in the 6th or early in the 7th century of the city, and the second in the age of Augustus. He tells us that as genera agendi or generic forms of process they were five in number, each taking its name from its characteristic feature, viz. (1) sacramento, (2) per judicis postulationem, (3) per condictionem, (4) per manus injectionem, and (5) per pignoris capionem. The third was unknown in the decemviral period, and was introduced by the Silian law formerly mentioned. The other four were all more or less regulated by the XII. Tables, but must in some form have been anterior to them. It is utterly impossible, however, to say of any one of them, apart from the condictes, at what time it was introduced, or what was the statute (lex) by which it was sanctioned; it may well be that they were not of statutory introduction at all, but were called legis actiones simply because recognized and indirectly confirmed by the Tables. In character and purpose each of the five had its peculiarities. The first three were directly employed for determining a question of right or liability, which, if persistently disputed, inevitably resulted in a judicial inquiry. The fourth and fifth might possibly result in judicial intervention; but primarily they were proceedings in execution, in which the party moving in them worked out his own remedy. As regards their comparative antiquity, there is much to be said for the opinion of Jhering and Bekker that manus injectio, as essentially nothing more than regulated self-help, must have been the earliest of the five, and that the legis actio sacramento and the judicis postulatio must have been introduced in aid of it, and to prevent too hasty resort to it where there was room for doubt upon questions either of fact or law.