Olim tradita fuerunt? On the obsoleteness of the sollemnia verba in Inst. 3.15pr.

Abstract

According to the classical dogma, the act of stipulatio was performed through the exchange of sollemnia verba, which were, according to my working hypothesis, verbs introducing the duty to perform a future act, a concept lucidly displayed by Pomponian (Dig. 45.1.5.1), hence the ‘Pomponian tenet’. Documents preserved on papyrus, composed by ‘new-Romans’ after the Constitutio Antoniniana, exhibit a completely different concept: a stipulation-clause confirming a past, contractually significant activity. It is asked (but not conclusively answered) to what extend this alternative formulation has paved the way to the abandonment of the ‘Pomponian tenet’ by the emperor Leo in 472 ce (CJ 8.37.10). As we draw from Justinian’s interpretation of CJ 8.37.10 in Inst. 3.15.1, the sollemnia verba, the use of which became outdated after Leo, was not the language of the stipulation-clause as incorporated in the written documentation of the contract, but that of the act of stipulatio, which, as before, was meant in the keep verbal.