Stipulatio - Content of The Contract

Content of The Contract

Conditional question and unconditional answer – This was invalid in Roman law: D.45.1.1.3

Stipulation for when I die: This is valid and is taken to mean I will perform when I am dying – the performance is due in the last moments of life (G.3.100). However, a stipulation for the day before death is not valid (Inst 3.19.15)

Stipulation for after death: This was probably not permissible during classical law because the obligation resides solely in a third party (the heir) – G.3.100. However, Ulpian, when he states the rule that one party cannot promise for another, makes an exception for heirs, which may mean that it was permissible. By the time of Justinian, the clear inconsistency between permitting a stipulation for when I die but not for after death or for the day before death, was removed, as both were now valid – Inst.3.19.13.

Stipulation for 10, answer given is 20: According to G.3.102 this would be void. However, according to D.45.1.1.4 it would be valid for 10. If the stipulation is for slave a and slave b and the answer is slave a, it will be valid for that one slave (D.45.1.1.5.) Ulpian argued there are as many stipulations as things stipulated for. This may seem unfair, but it is up to the promisee whether or not he enforces the promise.

Stipulation for a or b, where the answer given is a: This is void in the case of slaves (D.45.1.83.2) but valid in the case of money (D.45.1.83.3.) The difference arises because money can’t be destroyed in the way that slaves can be, so a stipulation for slave a or b is fundamentally different from one for a because in the first instance if a dies, the stipulation would be valid for b, whereas in the second, there would be no contract.