Addendum Formal, Abstract, and Simulative Dispositions.

The following observations borrowed from Thering are supplementary to the statements on the nature of formal contracts.

The contracts which in this treatise have been designated as formal are sometimes from a different point of view called abstract, and an examination of the meaning of this term may throw light on the function for which Formal contracts were invented by jurisprudence and which this term expresses. The explanation of the term turns on two conceptions: the Cause of an obligation (causa obligationis) and the Form of a Disposition: the cause alone needs elucidation.

A unilateral contract, consisting merely of a promise by one party and an acceptance by another, is the result of a decomposition of an actual transaction of commerce and life: actual transactions are always (to set aside for the present the case of Donation) bilateral. The unilateral agreement, conferring a benefit on A and imposing a burden on B, is always accompanied by another unilateral disposition burdensome to A and beneficial to B. The two unilateral dispositions are reciprocally cause and effect: when one is regarded as the causal factor, the other must be regarded (if we may coin a term) as the sequent or dependent factor of the composite or bilateral transaction.

Thus Mutuum, if we take one factor, is the promise to pay a sum which the promisor has received from the promisee: if we take the other factor, it is the alienation of property to a person who promises to reconvey its equivalent to the alienor. Depositum and Commodatum, if we take one factor, are promises to restore Detention which has been received from the promisee: if we take the other factor, they are a delivery by a depositor or lender of Detention which the depositary or borrower promises to redeliver. In Pignus there is a similar delivery and promise to redeliver Possession. Societas is a promise by a partner to contribute towards the attainment of a common end towards which the other partner promises a like contribution. In Mandate, there is, on the one side, a promise to perform something at the charge and expense of a principal: on the other, a grant of authority to deal with the property of the grantor to a person who promises obedience to the instructions and devotion to the interests of his principal. Here the italicized words show the causal factors which the various unilateral dispositions require for their support: and similarly all other unilateral pacts might be shown to be dependent factors of compound bilateral transactions.

Each correlated unilateral disposition is both cause and effect. Each is a lever by which the will of one of the contractors is moved. Each is the efficient or motor cause of the other: and (as wills are only moved by motives or ends) each is the final cause of the other.

Although they are thus reciprocally dependent, yet generally in practice one habitually precedes, and thus appears to be the causal factor; while the one which habitually follows appears to be the sequent or dependent factor. This is always the case in Real and Innominate contracts, where one disposition has always passed beyond the limits of mere agreement into an alienation of property (mutuum, the innominate contracts do ut des, do ut facias): alienation of possession (pignus): alienation of detention (depositum, commodatum): or performance of service (the innominate contracts facio ut des, facio ut facias).

The Form of a disposition is what we have elsewhere called its Declaration. All dispositions have two elements or aspects, one external or corporal, the other internal or mental. Internally they are the Intention of a disposer or disposers; externally they are the expression or manifestation of this intention.

Formal contract separates the sequent from the causal factor of a bilateral agreement, clothes the intention in a strongly marked, sometimes strangely charactered, external expression, manifestation, or form, in exact conformity to the prescription of archaic law or primeval custom, and thus constitutes a unilateral contract valid by form, Formless contract is bound by no requirement of Form and has no validity in isolation from its cause. Formal contracts from the separation or abstraction of the sequent from the causal factor, are appropriately called abstract; while for the opposite reason formless contracts may be denominated concrete.

Abstract contracts sometimes contained in their formalities a shadowy recognition of their departure from the concrete realities of life—a confession of the necessity of a supporting Cause in actual commerce; but sometimes contained no such avowal. Thus Expensilatio contained the phantom of a money loan, the analogon of the ‘Value received’ clause in a modern bill of exchange. But this recognition was not universal; for Stipulatio, whatever may have been its original form (if derived from Stips, the word suggests prepayment by the promisee: if connected with Stipes, it merely signifies a binding formula), in the shape with which we are acquainted, does not suggest, as a motive or cause of the advantage conferred on the promisee, any compensating burden that he has previously borne.

The function of abstract contracts, the purpose for which they were invented, is obviously the facilitation of the Proof of rights and duties by means of the simplification of their Title. The more comprehensive the conditions of the Title to which a right is annexed, the more complicated and troublesome will be its Proof. The causal factor of Formless contracts yields to a fraudulent debtor at least as many positions where he can intrench himself as the sequent factor. The necessity imposed on the plaintiff in an action on a Formless contract of proving the existence of an adequate cause doubles his burden of proof: Abstract contracts reduce this burden to a fraction.

From the statement, 3 § 92, comm., that a certain evidence of the contract is an integral part of Formal but not of Formless contracts, that Formal contracts, in other words, take up into their essence a certain preappointed evidence, while Formless contracts are complete independently of this, it might be inferred that the elements of the Formal contracts were more complex than those of the Formless: but this would be an erroneous conclusion. The admission of evidentiary matter into the essence of the Formal or Abstract contract is more than counterbalanced by the exclusion of the causal factor. The evidentiary matter is something visible and audible and easy of proof and adjudication; prescribed, indeed, for the very reason that it is so easy of proof and adjudication: whereas the causal factor, involving a question of ulterior as well as of immediate intention, may furnish scope for endless subterfuge and controversy.

The validity of Formal contracts irrespective of the causal factor was to a certain extent infringed in later jurisprudence by the admission of the Exceptio doli, more particularly in its form of Exceptio non numeratae pecuniae. Thus for the space of two years after a cautio for a loan by stipulation or otherwise had been given, the creditor who sought to enforce the contract was under the necessity of proving the existence of the causa (numeratio pecuniae): to this extent, then, Stipulatio was reduced to the disadvantageous position of a Formless contract, 3 §§ 97-109, comm.

Formal dispositions were not confined to the sphere of contract: in the sphere of alienations Traditio is Formless, while Mancipatio and In jure cessio are Formal. Formal alienations present the same contrast that we noticed between Formal contracts. Mancipatio by its simulation of a purchase and the payment of purchase money makes the same recognition of a causal factor that Nexum and Expensilatio made by the payment, or fiction of payment of, a loan; while in Jure cessio (if we can speak with confidence of a process about which we know so little) resembled Stipulatio in containing no such recognition.

Ihering, who has handled this topic, § 55, applies the term abstract to Formal alienations. When, however, we compare Formal and Formless alienations we find the terms Abstract and Concrete not so applicable to alienations as they were to contracts, and for this reason: in Formless alienation there is as complete an abstraction or severance of the sequent from the causal factor as there is in Formal; and Tradition is as unilateral a transaction as Mancipation or Surrender before a magistrate.

This assertion may seem inconsistent with the doctrine (2 § 65, comm.) that, to constitute a valid alienation, Tradition must be preceded by some justa causa, Donatio, Contractus, or Solutio. The preceding disposition, however, is not required in order to form the causal factor of a bilateral disposition, but in order to furnish evidence of the Intention required for a unilateral disposition: to prove the existence of animus transferendi dominii, without which Tradition would be a Form without a substance, would want the internal element it requires in order to amount to a Disposition. Once let the sequent factor, the intention requisite for a unilateral disposition, be proved, and the justa causa, the donandi, credendi, solvendi animus is immaterial. Thus a misunderstanding between alienor and alienee respecting the nature of the transaction, the one intending a loan the other a donation, or the one intending the discharge of a debt imposed by testament the other the discharge of a debt imposed by stipulation, is immaterial: because the intention of donation and of loan, of paying a legacy and of paying a stipulated debt, alike involve the animus transferendi dominii. Cum in corpus quidem quod traditur consentiamus in causis vero dissentiamus, non animadverto cur inefficax sit traditio, veluti si ego credam me ex testamento tibi obligatum esse, ut fundum tradam, tu existimes ex stipulatu tibi eum deberi. Nam et si pecuniam numeratam tibi tradam donandi gratia, tu eam quasi creditam accipias, constat proprietatem ad te transire nec impedimento esse, quod circa causam dandi atque accipiendi dissenserimus, Julian, Dig. 41, 1, 36. An error in respect of the causa may be sufficient to entitle an alienor to condictio indebiti or condictio sine causa; i. e. to a suit for restitution for want of consideration: but it does not prevent the transfer of ownership in the first instance: and if the property passes onward to a third person the alienor cannot reach it in his hands, but has only a personal action against the original alienee.

In one particular instance, by special statutory enactment, the causa traditionis is material to the efficacy of Tradition. Tradition solvendi animo, when the solutio intended is the performance of a contract of sale, operates no transfer of ownership except in sales expressly on credit until the purchase money is paid or security is given for its payment. This, as we have seen, 2 § 65, comm., was a provision of the Twelve Tables in respect of Mancipation, and in later times extended to Tradition. Surrender before the magistrate was not thus restricted in its operation, but transferred ownership irrespectively of the payment of purchase money. Ihering also holds that in Mancipation the requirement of the Twelve Tables was deemed to be satisfied by the simulation of payment (isque mihi emptus est hoc aere aeneaque libra); and he suggests that the existence of the requirement was the very reason why the simulation of payment was introduced into this solemnity.

In this single point, then, Mancipation (if Ihering’s view on the subject is accepted) and Surrender before the magistrate were more completely isolated from their causa than Tradition: but with this exception, Formal and Formless alienations were equally abstract. Both operated a transfer of ownership in spite of any flaw in the causa. If such a flaw existed in either a Formal or a Formless alienation, it only gave the alienor a personal action (condictio) against the alienee for restitution. He could not recover the property if it had passed out of the hands of the first alienee into those of a second.

If we inquire why Formless alienation was allowed to have validity irrespectively of the causal factor, we shall find the reason to be, that Tradition or parting with possession, though a Formless proceeding, is an act of so serious a character as effectually to preclude all idea of indecision—to prove that the parties had reached the stage of definitive resolution. Accordingly the intention of transferring ownership when manifested by Tradition seems to deserve all the efficacy that could be imparted by the observance of the most solemn Forms.

As in the later jurisprudence Stipulatio was robbed of part of its efficacy by the Exceptio pecuniae non numeratae, so, though at an earlier period, and in a different way, Alienations and other transactions, whether Formal or Formless, could be prevented from operating by the in integrum Restitutio, and by the actio quod metus causa, impersonal remedies (in rem) which reached the person benefited by property to whatever hands it might have arrived by the effect of subsequent alienations.

If, then, Formal alienations were not simplifications of title in virtue of any greater abstractness than was possessed by Formless alienation, for what other advantage were they introduced into commerce? by what other attribute were they a facilitation of Proof? They facilitated proof (1) of the specific intention of a disposer against an allegation of a different intention, and (2) of the existence of intention against the denial of all intention.

(1) Delivery of a thing might be made with the design of merely transferring Detention. Such was its effect in Depositum, Commodatum, Mandatum, Locatio. Or, secondly, it might be made with the purpose of transferring something more than Detention, namely Possession. Such was its effect in Pignus and Precarium. Or, thirdly, it might be made with the intent of transferring Ownership, as in Donatio, Mutuum, Solutio. Which of these intentions prompted a given Delivery might be extremely difficult to prove. The difficulty vanishes in Mancipation and Surrender before a Magistrate. Their forms comprehend a most emphatic and trenchant expression of intention. ‘I assert that this slave is my own’ (hunc ego hominem meum esse aio) is the exclamation of the alienee, confirmed by the assent of the alienor, in both modes of Formal alienation.

(2) Formless dispositions, whether alienations or contracts, may leave a doubt not only which of several intentions governed a procedure, but whether any intention at all had been matured in the minds of the negotiators. Had the parties passed the stage of mere contemplation, inclination, preliminary discussion, were they still vacillating, now yielding to an attractive prospect, now receding from half-made concessions? Or had cupidity and timidity, desire and hesitation, given place to final decision and deliberate resolve? It is obvious that the formalities of the solemn modes of contract were invented for the purpose of excluding all doubt from the answers to these questions.

Beginning these remarks we adjourned the consideration of Donation, which may now be noticed. Unilateral dispositions, we have seen, do not exist in the actual world unaccompanied. Each implies another on which it leans. Intention to incur a loss has its final and efficient cause in intention to procure a gain. If this was universally true we might say that all dispositions were in respect of motive bilateral: i. e. that in all a pecuniary loss incurred at one stage of the transaction is balanced by a pecuniary gain accomplished at another. This holds of all mercantile transactions which are the bulk of those that occupy the attention of jurisprudence. The market, however, is not the whole of the world, nor are mercenary acts the whole of life; and there is such a thing as a disinterested disposition, a disposition wherein a man incurs a loss to which the causa or motor factor is the intention not of counterbalancing gain in another part of the transaction, but of pure and simple and unrequited liberality.

Donation may be found in the sphere either of Ownership or of Obligation; it may be accomplished either by alienation or by promise: the intention of liberality may be consummated either by Tradition or by Stipulation. Donation, that is to say, is one of the causae obligationis as well as a justa causa traditionis: and it was in contemplation of a contract animated by such a cause that we abstained, when beginning this note, from saying unreservedly that all actual agreements were in respect of the motives giving rise to them bilateral.

I will seize the present opportunity of supplying an omission in the commentary and noticing another feature common to many Formal dispositions.

The formal dispositions of Roman jurisprudence were frequently simulative. When a new juristic purpose was to be accomplished, the method of jurisprudence was, instead of creating for it by an effort of imagination a new corporeal form, to lay hold of some existing disposition, and wrenching it more or less completely from its original basis and original uses, to employ its more or less twisted and distorted form as a vehicle or incorporation of the new intention. The new intention is the reality: the original intention is divorced from the form once its own, and now is merely simulated. Thus the festuca wielded in Sacramentum perhaps represents the weapon intended to be used in a duel, the older mode of ascertaining rights. Surrender before the magistrate (in jure cessio) is intended to effect a transfer of ownership from person to person: in form it is a judgment respecting an already existing ownership. Transcripticia nomina were intended to operate novations, to transform equitable into legal obligation: in form they were loans of money. Mancipation, a solemn form of conveying dominion, simulated a sale and the accompaniment of primeval sales, the weighing of the uncoined masses of bronze that served as purchase money. The form then, instead of being the natural execution and expression of an intention, has but a remote correspondence to the end which it embodies, and sometimes may be called symbolic: e. g. the production of the scales and bars of bronze and pantomime of weighing in Mancipation was the natural mode of executing an archaic sale, but is merely a symbolic or hieroglyphic expression of the transfer of ownership. Sometimes a mimetic disposition became itself the object of subsequent mimicry, as is seen in the mode of discharging obligations, called acceptilatio Aquiliana.

The Simulative character was not a universal feature even of the older Formal dispositions: for instance, Stipulation seems to have had nothing mimetic in its form: while later jurisprudence, when it had to invent a form, never adopted the symbolic style. Rigorous forms were prescribed as a condition of the validity of various dispositions: e. g. the presence of a certain number of witnesses for the execution of a Will: memorandum in the judicial records (actis, gestis insinuare) for donations of more than 500 solidi or for effecting emancipation by entry in such records (emancipatio Justinianea): none of which were simulations of any more primitive procedure.

The degree of integrity or mutilation in which the primeval disposition persisted in the modern institution varied in different instances. Sometimes the old proceeding imposed all its rules on the new institution: more commonly many of its aspects were effaced and only isolated incidents continued in force. The procedure which involved Coemptio, 1 § 113, was applied by the ingenuity of later jurists to accomplish three purposes never dreamed of by those who presided over its introduction: the extinction of the sacred rites by which the estate of an heiress was burdened; the change of guardian by a woman at the period when all women were under wardship; and the acquisition of testamentary capacity by a woman at a time when widowhood was the only title by which it could be acquired. It was a complicated process and consisted of three factors, each of which was an archaic institution: (1) a Hand-marriage (in manum conventio) accompanied with a fiducia for remancipation; (2) a remancipation accompanied with a fiducia for manumission; (3) a manumission and consequent wardship. Of these factors the Hand-marriage was a pure unreality: it was divested of reality by the accompanying fiducia; yet one of its incidents continued in force, the transfer of the obligation to the sacred rites from the heiress to the coemptionator. The second act was so far an unreality that it was no longer the sale of a wife by her savage lord in exchange for some more coveted commodity: but it was real so far as it subjected the remancipated woman to capitis minutio. The manumission was unreal so far as it implied a vindication into freedom or a liberalis causa and an escape from the hardships of bondage: but it was real so far as it had the effect of making the manumitted ex-bondwoman the ward of her manumitter.

Emancipation, 1 § 132, was a process which usually consisted of four mancipations and three manumissions. The first three mancipations were each accompanied by a fiducia of the alienee: the first two by a fiducia binding the alienee to manumit the son, the third by a fiducia binding the alienee to remancipate the son to the father. By the final manumission the parens manumissor became the patron of his son. Here we have another ceremony which employed a primitive disposition divested of its natural motive. The independence of the son whose father had three times sold or leased his patria potestas over him to a stranger was originally enacted by the Twelve Tables as a punishment for an odious and unnatural exercise of parental rights. In later times the mancipation of the son for the sake of its legal consequences was an act of self-abnegation on the part of the father; a means of promoting the son to an independent position, the status of head of a household.

The positive and arbitrary character of simulative dispositions displays itself in the fact that the laws of the original dispositions which they welded into their substance were neither consistently regarded nor consistently disregarded. (A) Sometimes they were regarded in spite of the inconvenience they occasioned: (B) sometimes convenience prevailed: the new institute acquired an independent position; and logic and archaeology were set at defiance.

(A) The form of surrender before the magistrate could not be employed for the acquisition of property by the agency of an inferior (son or slave), because such a person could not be a plaintiff in a genuine vindicatio. Hence the inferior could be an instrument for acquiring a rustic servitude, because he could be a party to a mancipation, but not for acquiring an urban servitude, because this could only be conveyed by surrender before the magistrate, 2 § 29.

In Mancipatio the payment by bars of bronze became as fictitious as the adprehensio or taking possession; and yet, according to Ihering, it sufficed to satisfy the requirement of the Twelve Tables whereby in Sale and delivery the passing of property was suspended until payment of the purchase money. (See 2 §§ 15-27, comm., and cf. Sohm, p. 60, &c., Muirhead, p. 134, &c.)

Manumission of the son by the emancipating father from the shadowy state of mancipium invested the latter, if he survived his son, with the serious pecuniary rights of patronus against his testate or intestate succession.

Women were incapable of Adrogation, because this solemnity involved a formal assembly of the Comitia Curiata; and in such an assembly women were not allowed to be present.

In the mancipatory will the Familiae emptor was originally in the place of the heir; and therefore, to exclude partial testimony (domesticum testimonium), persons united to Familiae emptor by the bond of patria potestas were disqualified for the rôle of witness. The disqualification was continued, in spite of the inconvenience it would occasion, when the familiae emptor was a mere form; and, what is more extraordinary, legatees and persons united to the real heir were admissible as witnesses, although the policy of the law was thereby entirely put into confusion (totum jus tale conturbatum fuerat, Inst. 2, 10, 10). The requirement of testamenti factio passiva at the time of the making of a will, as well as at the time of the testator’s death and the time of acquisition by the heir, was, according to Savigny, § 393, only an irrational consequence of the simulation of Mancipium in a will.

(B) In the following instances, on the contrary, the laws of the simulated institution were disregarded or transformed. Hereditatis petitio being a form of Vindicatio we might have expected that any kind of inheritance when once vested would be transferable by surrender before the magistrate or fictitious vindication, just as any inheritance could be claimed by genuine hereditatis petitio. But we find that only the intestate succession of a collateral (legitima hereditas) could be thus conveyed, if, made after aditio, it transferred only the corporeal property of the inheritance, not the inheritance itself, 2 § 35. Cf. Sohm, p. 533, n. 3.

In Mancipatio, although the fictitious payment sufficed for the transfer of dominion, yet actual payment or credit was required for the purpose of making the alienor subject to auctoritas, that is, to liability to repay twice the purchase money in the event of eviction, Paulus, 2, 17, 13. Cf. Muirhead, Roman Law, § 30.

Again, the Census, like a year of jubilee, appears to have liberated from genuine bondage; but not to have broken the fictitious bondage of a son who was in the course of emancipation, 1 § 140.

Coemption, we are told, transferred to the husband the universal estate of the wife, 2 § 98. We may suppose that it had not a similar effect on the property of a woman who merely made a coemption for the purpose of changing her guardian or acquiring testamentary capacity, though it may perhaps have been that the transfer took place but that the coemptionator was under a fiducia to retransfer it.

The genuine sale of a wife was probably forbidden at an early period under the severest religious sanctions: this did not prevent the simulated sale (remancipatio) of a woman by her coemptionator, i. e. the simulating disposition when once established was free from the supervening rules of the simulated disposition.

A Testament was originally a Mancipation; but the familia or juris universitas, the object of testament, is not found in the catalogue of mancipable things (res mancipi): a testament was revocable, a mancipation irrevocable: the mancipation itself could not have its operation suspended or made contingent on a condition, though it could be made subject to nuncupatory and fiduciary claims; a testament became by means of the nuncupatory part of the mancipation a disposition de futuro and might be conditional: a mancipation only conveyed real rights; nexum, which imposed obligation, though cognate, was a distinct institution: testament invested the heir with the entire property of the deceased, including his obligations: mancipation only affected the alienor and alienee; testament conferred rights on heirs and legatees, i. e. strangers who had in no way cooperated in the execution of the testament. The sacrifice of reality to fiction by the slavish adherence to the rules of domesticum testimonium makes it the more remarkable that the testament should have burst asunder so many other restrictions of mancipation. Ihering, Geist des Roemischen Rechts, § 58.