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OBLIGATIO LITTERARUM
OBLIGATIO LITTERARUM One of the four modes in which, according to Gaius (3.89), contractual obligations could be incurred, was litteris. The contract was made by the creditor's entry (Gaius, 3.137) of so much as expensum to the debtor in his account book (codex accepti et expensi). The debtor's assent to the entry was necessary (Cic. pro Rosc. Com. 1, 5; V. Max. 8.2, 2), but. apart from that it was immaterial whether he had in fact received the money or not. For the practice of accurate book-keeping, which the Romans very possibly adopted from the system of the bankers in the Greek cities of Campania, reference may be made, in addition to the passages last cited, to Cic. in Verr. 1.23, 60; 39, 99;--2.76, 186--pro Quint. 4, 11; pro Font. 3, 15; pro Cluentio, 30, 82; and Pliny, Plin. Nat. 2.7. The items of receipt and expenditure appear to have been entered without distinction, in the order of their occurrence, in a day-book (adversaria), and transcribed at the end of each month into a ledger (tabulae, codex accepti et expensi), the precise form and character of which is much disputed, though most probably it was arranged in two sides or columns after the fashion of an ordinary banker's pass-book. The entry in this ledger (nomen facere, Cic. in Verr. 1.36, 92; 39, 102;--ad Att. 4.18; Seneca, de Benef. 3.15) made the contract, and bound the debtor to repay the specified sum: it was not merely evidence, admitting of the possibility of rebuttal.
We are told by Gaius (3.131) that if an entry were made in the codex of an actual money loan, the obligation to repay it arose re (MUTUUM), not litteris, and the debt was called specifically nomen arcarium, the written record serving merely as evidence. It follows that wherever a genuine money debt was created litteris it must have been under the fiction of a loan, as appears to have been the case in two instances of debts originally incurred in this manner of which we have a record (Cic. Att. 4.1. 8; V. Max. 8.2, 2). But it seems clear that the most common purpose for which Expensilatio (as the contract is termed) was used was that of novation (inf. p. 259): and there were two modes in which an obligation could be novated litteris. By the first ( “Transcriptio a re in personam,” Gaius, 3.129) a debt owing on some other ground, such (e. g.) as consensual contract or legacy, might be converted into a “literal” debt: for instance, an heir might be given time to pay a legacy on the condition that the legatee should be allowed to enter the money as expensum to him. The object of this, beyond a doubt, was to subject the strict action known as condictio certi, with its penal wager of a third of the sum in dispute, for an action (usually bonae fidei) by which only the actual sum due could be recovered. The old contract and the old action ceased to exist, their places being taken by new ones more favourable to the creditor. The second form of novation ( “Transcriptio a persona in personam,” Gaius, 3.130) was employed where it was desired that money owed by one person to a second should be owed to him by a third instead: thus, if A owed money to B, and it was agreed that C should enter it in his codex as expensum to A, C would become A´s creditor instead of B. In a similar way one debtor could be substituted for another, the creditor remaining the same.
Whether the “literal” contract could be entered into by aliens was disputed between the Sabinian and Proculian schools of lawyers. The latter held:that it was too peculiarly juris civilis to be available to them at all: the former thought that they could be bound by it a re in [p. 2.254]personam, but not otherwise (Gaius, 3.133). But Gaius says (ib. 134) that aliens had a kind of literal contract of their own, differing from Expensilatio materially in form, but similar to it in its operation. This was a species of bond (chirographa, syngraphae), signed by the debtor, and acknowledging the debt, of Greek origin, as the names denote; and it seems clear, from the language of Gaius, that the bond, like the debt, was or constituted the obligation: it was not mere evidence, like the entry of a nomen arcarium.
Although Gaius speaks of Expensilatio as a form of contract actually existing in his own day, there can be little doubt that it had gone out of use, along with the regular keeping of accounts, among the generality of Roman citizens, and was still in vogue only with bankers, who kept their customers' accounts for them. Perhaps no explanation of this need be required beyond the general decay of republican manners under the Empire; but probably the disuse of the literal contract was connected with the introduction of constitutum, which secured all the advantages of Transcriptio without the extinction of the prior obligation, and still more with that of the exceptio dolt, which may be attributed with some certainty to Gallus Aquilius, who was Cicero's colleague in the praetorship. The action for breach of an obligation incurred litteris was stricti juris, and the law was that fraud was no defence to an action of that kind, so that a defendant was helpless whose consent to the creditor's entry had been obtained by misrepresentation, or by an unfulfilled undertaking to advance money or give credit in consideration of that promise being given. An anecdote told by Cicero (de Off. 3.14, § § 58-60) puts the matter in a strong light. Pythius, a Syracusan banker, induced Canius to buy a country-house from him by fraudulently inducing him to believe, on the evidence of his own eyesight, that the estate and neighbourhood abounded in spoils for the hunter and the fisherman. Knowing that a consensual contract of sale would be radically vitiated by his dishonesty, honesty, he produced his codex, and got Canius to assent to the debt being transcribed on the spot. Canius, says Cicero, had no remedy, for his colleague Aquilius had not yet introduced his formulae de dolo. When however that had been done, Expensilatio had virtually ceased to be a contract binding through its form alone; and whenever there had been anything in the nature of chicane or dishonesty on the creditor's part, he could not but fail in his action.
The later history of the literal contract, and in particular of the so-called “literal obligation” of Justinian's Institutes (3.21), is intimately mately bound up with that of Stipulation, the contract made verbis. In the Greek provinces of the Empire the old oral stipulation of Rome, and the provincial chirographum or syngrapha, appear to have become merged together in the written and signed memorandum (cautio, instrumentum), purporting to attest a stipulation actually made by oral question and answer (Paul. Sent. rec. 5.7, 2; Inst. 3.19, 17). If such a cautio were obtained by the promise of a pecuniary consideration, which in fact had not of the been given, it could when sued upon be met by the “exceptio pecuniae non numeratae,” a specific variety of the exceptio dolt: and it was enacted in 213 A.D. (Cod. 4, 30, 3) that when this plea was entered by the defendant, the plaintiff should be bound to prove that the alleged consideration had actually been given, unless a certain interval of time had elapsed from the date of the document. It seems that when, in compiling the Institutes, Justinian found that he had no genuine literal contract, corresponding to the old Expensilatio, to describe, he thought the best equivalent would be this cautio purporting to evidence a stipulation, and the kindred topic of the “exceptio pecuniae non numeratae.” That this is the true significance of the very difficult title (21) in the third book of the Institutes appears clear on a careful examination of the passage in Gaius (3.134), upon which it is obviously modelled, and in view of a later paragraph (4.13, 2) of the Institutes themselves. But between the old contract, made by entry in the codex, and the cautio which Justinian put in its place, there is the same radical difference that there is in English law between a deed under seal and a mere written memorandumn of a contract. The entry in the codex was the contract; and if its genuineness was not disputed, the party against whom it was made was technically bound, though he might escape judgment by pleading the exceptio doli. That the cautio was not itself a contract, and never more than evidence of an alleged contract made (expressly or impliedly) by stipulation, which could be rebutted by counter-evidence that the alleged contract had never been made at all, is placed beyond all reasonable doubt by the passage of the Digest (44, 7, 1, 2) in which the sources of contractual obligations in Justinian's time are enumerated. In that passage, which is taken from another work of Gaius, we read “obligationes ex contractu ant re nascuntur aut verbis aut consensu:” and the “aut literis” which Gaius no doubt originally wrote was deliberately suppressed by the compilers of the Digest, so as to bring the extract into agreement with the actually existing law of the day. (Savigny, Verm. Schriften, 1.205 sq.; Gneist, Die formellen Verträge, 321 sq.; Rein, Civilrecht, p. 677 sq.; Voigt, Jus Naturale, 4.74, and his treatise Ueber die Bankiers, die Buchführung und die Litteralobligation der Römer; Keller, Beitrag zu der Lehre von dem röm. Literal-contracte in Sell, Jahrbücher 1; Schüer, Die literarum obligatio des älteren röm. Rechts, 1842; Buonamici, Sulle literarum obligationes in diritto Romano, Arch. giurid. 16.3 sq.; Padeletti, History of Roman Law, ch. 21, note 6.)
[J.B.M]
Dictionary of Greek and Roman Antiquities
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