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Chirographs in Roman law: constitutive or evidential?

In: Tijdschrift voor Rechtsgeschiedenis / Revue d'histoire du droit / The Legal History Review
Author:
A.J.B. Sirks University of Oxford, Fellow of All Souls College, Oxford, UK

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Summary

It has recently been sustained that chirographs had only evidential value and no constitutive effect in classical Roman law. That is correct regarding their origin in Roman law, however, the nature of a chirograph was such that as evidence it was effectively constitutive. Only the remedies later created (the exceptio and later the querimonia non numeratae pecuniae) provided relief. They and the actiones utiles granted to acquirers of chirographs prove that in the course of time chirographs were considered by their users as constitutive, if not already declared so. It appears from the Murecine texts where debtors declare themselves indebted by chirographs that this situation may already have existed in the middle of the first century ad. Hence we should accept the possibility of an early shift in legal categorisation of the chirograph to a contractus litteris.

1 Introduction

In 2018 Verhagen discussed the question, whether chirographs (also called cautiones) were in classical Roman law constitutive or evidential1. According to him Jakab and I argue that as a matter of Roman law chirographs (by which we primarily have in mind debt acknowledgements (iou), either straightaway or on basis of a preceding legal relation) were constitutive and functioned as an independent source of obligation2. In my article the question was: Could chirographs fulfill, and did they, the function of negotiable instruments? In my opinion they could be transferred to other persons, who could either transfer them again or cash the amount of money promised. On basis of second century texts in which they are bequeathed or sold they functioned, I argued, as transferable iou’s. Whether they were accepted depended, as in later times, on the trust the transferee had in the promising debtor. Where the promisor (the debtor) was called upon and did not invoke the exceptio non numeratae pecuniae, after the legal term (of one year) the chirograph became incontestable proof of a debt (for a money loan) and thus constitutive for the debt. Hence on basis of this use I assumed they were constitutive, at least after a year, while I did not examine the situation before.

Verhagen contests this position. He sees chirographs as merely evidential, in any case for the period of classical Roman law. In an exposition of the Roman law of evidence he reminds us of the fact that the Roman judge was rather free in his valuing of evidence and that writing, as Gaius in D. 20,1,4 says, has merely the function of proof. The evidence of the Pseudo-Asconius, that syngraphs are binding even if the debt recorded in it is fictitious he rejects, and consequently also this possibility for chirographs. They are powerful evidence against the person executing such a document. Moreover, even if it were constitutive in Greek law, it does not mean that a take over in Roman law would have the same effect3. This means that in practice for a transfer a novatio or procedural mandate was required, which of course would restrict their application and halt a use as negotiable instruments. Verhagen summarises his view as follows: ‘When the creditor instituted the condictio on the basis of mutuum or stipulatio he would have to prove the numeratio or the oral formalities of the stipulatio, while in case of an action directly based on the chirograph itself only the document would have to be produced in court. The latter may often have been true in practice, but only as a consequence of principles of evidence. But the action brought by the creditor against the debtor, for which a chirograph like that of TPSulp 51 would be produced in court, would be the condictio, either pursuant to the mutuum or the stipulatio evidenced by this document. The chirograph itself was not a cause of action’4. Effectively Verhagen takes the same position as Platschek. Platschek sees in the chirograph a hellenistic debt acknowledgement, which was enriched with a Roman stipulation: a hybrid. But it remained evidence. Yet by cumulation of obligatory grounds such documents became very effective (‘Durchschlagskraft’). The users did not see the stipulation as the fundamental act but, in the hellenistic tradition, the drawing up of the document. As in TPSulp. 79 the debtor identifies the debt with the chirograph5.

Still, Verhagen’s position leaves questions open. If a chirograph was powerful evidence, could it nevertheless be rebutted? And when he says ‘When the creditor instituted the condictio on the basis of mutuum or stipulatio he would have to prove the numeratio or the oral formalities of the stipulatio, while in case of an action directly based on the chirograph itself only the document would have to be produced in court. The latter may often have been true in practice but only as a consequence of principles of evidence’, what does that consequence imply? What does he mean by the principles of evidence? Merely that the creditor did not have to prove numeratio or stipulatio is rather meagre. Theoretically one may persist in categorising the chirograph as evidence, but if this evidence sufficed to establish the obligation to pay, the line between evidence and constitutive force becomes at least blurred. For the debtors in the Murecine tablets it was the chirograph which established their liability, not a preceding stipulation. Also such self-acknowledgments were in principle not rebuttable (see below, nr. 2). The actual users apparently had a not so dogmatical appraisal of chirographs. As I shall argue, the way Verhagen presents the situation is more complicated: it is not a clear dogmatic choice between evidential or constitutive, nor can we see this as separated from the question of their transferability. I shall first deal with the character of the chirograph, then with the few texts of the second century which mention chirographs, after that with the exceptio non numeratae pecuniae and the querela non numeratae pecuniae, finally with the postclassical period since Verhagen also draws an argument there.

2 The special character of chirographs: irrefutable evidence which binds

Verhagen’s article brings up the necessity of considering the evidential function of chirographs, an aspect I did not deal with before and I appreciate his criticism which led me to this point. He is of course right in stating that general Roman judges had a large measure of freedom regarding evidence and in first instance the chirograph is a piece of evidence. For example, D. 12,1,40 Paul. 3 quaest. records in the first place a stipulation:

… Lucius Titius scripsi me accepisse a Publio Maevio quindecim mutua numerata mihi de domo et haec quindecim proba recte dari kalendis futuris stipulatus est Publius Maevius spopondi ego Lucius Titius. …

… I, Lucius Titius, have written that I have received from Publius Maevius fifteen [aurei] paid to me from his home as a loan for consumption. These fifteen are to be given in best coin on the first of next month; for this, Publius Maevius has stipulated, and I, Lucius Titius, have promised. …

In the following of this fragment a stipulation regarding due interest is also recorded and the legal struggle here was about the interest. Also, a creditor who has to sue for his claim has to prove his claim. But here the parallel with other cases stops.

Both Platschek and Verhagen maintain that the chirograph is the evidence of a preceding stipulation, yet both also acknowledge that in practice the users see the basis of their debt in the chirograph itself. They see it as constitutive. For example, in TPSulp. 52 Gaius Novius Eunus says alio chirographo eidem debo – ‘I owe to him by another chirograph’, the other chirograph being TPSulp. 51. Verhagen explains this as a simple reference to TPSulp. 51 where a stipulation is the cause of debt6. Elsewhere, however, he says: ‘Apparently the use of chirographs and other documents had become so familiar that – in this respect – debts were identified with the documents evidencing them’7. Unfortunately he does not explore this phenomenon. Then indeed, a stipulation was originally the cause in TPSulp. 51, but once that chirograph was written it constituted apparently the debt for Eunus. This acceptance will have been the reason for Platschek to state that the drawing up of the chirograph was decisive for its users. This decisive effect is hellenistic, not Roman8. Verhagen assumes that chirographs purported to state the true state of affairs and are therefore less likely to have been constitutive than syngraphs (which according to Asconius may be contrary to fidelity)9. For Verhagen the chirograph itself was not a cause of action10. Chirographs had a purely evidential function and so Eunus refers by these words to the chirograph with the original obligation and implicitly to the stipulation of which the chirograph is the evidence11. Unfortunately it is not what Eunus, Zosimus and Cinnamus say: they clearly say they are indebted by another chirograph, alio chirographo debo, not (ex stipulatione in) alio chirographo debo. They treat the chirograph as such as basis for the debt. One may impute them an evidential intention in their statements, but that requires more than just this. Similarly Platschek’s explanation for this phenomenon does not hold. A cumulation of obligatory grounds makes indeed the claim of the creditor stronger, but that again is not what the users say. They treat in his examples of TPSulp. 79 and 55 the mere chirograph as basis for their debt. His idea of hellenistic influence is, on the other hand, not to be rejected straightaway.

The users – whom we may assume knew what they did – apparently identified debts with the documents evidencing these, treating these as binding. Why? For that we should focus on the chirograph as debt acknowledgement (iou, ‘Schuldanerkenntnis’). Then, what is a chirograph? It is a declaration by somebody (the debtor) that he owes something, usually money, to a specified person or his representative or to the holder of the chirograph (the creditor). He may also mention the underlying cause of his obligation in the document. So, when it comes to a lawsuit and the creditor hands over the chirograph to the judge, it is not so much he who has to prove the debt, it is the debtor himself who proves it, just as with the Lucius Titius above. Lucius Titius acknowledges the receipt of the loan, he acknowledges the stipulation that he will repay the loan, he acknowledges the promise to pay interest: the document robs him of the possibility to deny or disprove the receipt, the debt and the obligation to pay interest (the problem was not that he had to pay interest, but over which sum). Denying would imply that he committed fraud, it would dishonour him (see CJ 4,30,13 which in fine states: nimis enim indignum esse iudicamus, ut, quod sua quisque voce dilucide protestatus est, id in eundem casum infirmare testimonioque proprio resistere – ‘For we judge that it is too unworthy that what each person has affirmed very clearly in his own voice should for the same case weaken his argument and rebut his own testimony’)12. As such the chirograph works absolutely against the debtor and because he cannot refute his own declaration it is binding for him. That fits its character as an irreversible self-declaration in which he acknowledges also receipt. The same goes for TPSulp. 57 (also with a receipt)13. Prudent creditors will have seen to include that, as in TPSulp. 51 (C(aius) Nonius Eunus scripsi me accepisse …; idem in TPSulp. 52, 55 and 71), in D. 16,3,24 (centum nummos quos hac die commendasti mihi adnumerante servo Sticho actore) or in D. 12,1,40 (Lucius Titius scripsi me accepisse a Publio Maevio quindecim mutua numerata mihi de domo et haec quindecim proba recte dari kalendis futuris stipulatus est Publius Maevius spopondi ego Lucius Titius). No room here for the querela non numeratae pecuniae and exceptio non numeratae pecuniae if these remedies were already available.

What both authors do not take into account (or at least do not work out) is the effect of this kind of evidence. Even if it were not representing the true state of affairs, it must and will be interpreted as the true state, it is irrefutable evidence and as such becomes binding for the debtor: indeed, not until in court, but the outcome as can be expected casts its shadow ahead and people will act accordingly. If the chirograph were mere evidence, how could a debtor raise counter-arguments? Because that is the consequence of emphasising the evidential character. It might indeed that the chirograph had been extorted from the debtor. In that case he could raise an exceptio doli, not against the debt but against the actual claiming (by a condictio) and he would then have to prove the extortion14. That is possible. He also might contest the numeratio but that would be very difficult to prove: how to prove what has not happened? This difficulty was the reason to introduce the exceptio non numeratae pecuniae (see nr. 4). Before that, there would have been no possibility to contest the chirograph on this ground. If the chirograph mentioned the cause of the debt, e.g. a stipulation, that cause might be contested. But CJ 4,30,13 argues against this possibility for the classical period. The constitution allows counter-evidence only if the chirograph mentions also the underlying legal cause. It dates from Justin I (emperor from 518 till 527). It sets as condition that the ground for the money debt was mentioned in the chirograph. In that case the debtor may prove that the debt originated in another legal relation. CJ 4,30,13 introduces this remedy: apparently it did not exist before. Thus the evidential value of a chirograph was actually irrefutable15. There is no reason to assume that the same was not valid for a chirograph which contained a constitutum debiti. Verhagen searches in texts for an underlying stipulation with great exegeses but in this context that has no significance16.

And if we consider the procedural context of the evidence of a chirograph, its irrefutability only increases. In a law suit the judge will ask the defendant whether he acknowledges the claim (the confessio in iure) or not. If the debtor would read aloud the chirograph in court, he would perform such a confessio. And that is the point. A chirograph is substantially equal to a confession, the regina probationis. If a debtor acknowledges in court his debt, the case is basically finished. The rule of confessus pro iudicato habetur applies and the plaintiff may proceed after thirty days for execution. Even if the fact on which the claim of the plaintiff is based does not exist17, the defendant is now bound. Similarly, because a debtor cannot rebut his self-declaration, in practice the chirograph will function like a confessio and though there is still a condemnatio necessary to make the debtor pay, in practice he is equal to a confessus qui pro iudicato habetur18. The particular character of the chirograph as being an irrefutable acknowledgement of debt makes it different from any other kind of evidence. It is evidence the judge cannot put aside and so it functions as a prospective confessio in iure. It is the evidence the debtor has drawn up himself against himself. The consequence of this is that the debt is identified with the chirograph by the concerned.

In Gai 3,134 the chirograph is something proprium peregrinorum. This text of Gaius is slightly enigmatic. Why does Gaius mention the stipulation here in the context of obligationes literarum? Probably because he thinks of the situation where parties are present at the same time and place and so can stipulate. The chirograph would then be used to acknowledge a debt over a distance by writing. Its constitutive character as obligatio litterarum worked for non-Romans. However, if a Roman would book a chirograph as nomen transscripticium the debt would become an obligatio litteris: if the debt was by a Roman, both a re in personam and a persona in personam, if by a non-Roman, for a re in personam (Gai 3,128–133)19. We do not know whether that happened but it could and shows that the line between evidential and constitutive was here thin.

These aspects Verhagen and Platschek have not taken into account. According to Verhagen the rules on evidence were still flexible, by which he means that judges could still move away from written evidence and he refers to the constitutions of CJ 4,30 as indication of rules on this kind of evidence20. Yet: was that also true for chirographs? Could they set the written evidence of chirographs aside? Was there counter-evidence possible in that case (because a leeway in evidence presumes other evidence may be adduced)? As set out, the irrefutable evidence of a chirograph makes this very difficult if not impossible (see below, nr. 4 for the remedies introduced to balance this)21. In theory one may insist on the evidential aspect but in practice it has no consequences. The chirograph becomes binding. One may say: not as a result of a change of its legal nature but as a result of the evidential effect. True, but would this distinction have bothered the Romans of Murecine who used it? For them it did not matter, the chirograph was binding anyway. It explains why we see later the chirograph in law categorised as being an obligatio litteris, but considering the way the people of Murecine saw it the actual change had already taken place. That it had this character for non-Romans may have reinforced this change. Platschek sees the cause in a cumulation of obligatory causes. But the essence of the chirograph is not evidence of any preceding relation but the self-declaration of being indebted by the writer. He has put so to speak his head in the noose by himself.

3 Transfer of chirographs

As Verhagen has set out excellently, those texts in the Digest which deal with chirographs do not specify a formally constitutive force. He repeats this in his book ‘Security and credit’ when he discusses CJ 4,39,7 where Diocletian grants analogous actions (actiones utiles) to the person who purchased pledged cautiones, just as such had already been granted to the creditor who claimed payment. Notwithstanding this evidence that chirographs could be sold and pledged, that the purchaser or pledgee could use actiones utiles to collect the debt, and that this was around 294 standing practice, Verhagen rejects the idea that this means chirographs were negotiable instruments. It was still necessary – and I assume he means here for the entire classical period – when transferring such debt acknowledgements to perform a novatio or give a procedural mandate22. His argument is that as Julian says the debt itself was sold or bequeathed, what was sold or bequeathed were the actions of which the chirograph is the proof (D. 32,59), not the chirograph.

Julian says in D. 32,59 Iul. lib. 34 dig.:

Qui chirographum legat, non tantum de tabulis cogitat, sed etiam de actionibus, quarum probatio tabulis continetur: appellatione enim chirographi uti nos pro ipsis actionibus palam est, cum venditis chirographis intellegimus nomen venisse. Quin etiam si nomen quis legaverit, id quod in actionibus est legatum intellegitur.

A testator who bequeaths a chirograph has in mind not only the document but also the actions of which the proof is enclosed in the wooden tablets. It is well known that we use the term chirograph for the actions themselves, since when a chirograph is sold we understand that the debt has been sold. In fact, also if anyone bequeaths a debt, this is understood to be a legacy of what is to be had from the actions23.

Julian states that when a chirograph is sold, it is not only the (wooden) document which is sold, but also the debt testified in it, which means that the implicit actions are sold too so that the debt may be collected: appellatione enim chirographi uti nos pro ipsis actionibus palam est, cum venditis chirographis intellegimus nomen venisse. – ‘It is well known that we use the term chirograph for the actions themselves, since when a chirograph is sold we understand that the debt has been sold’.

Julian has in mind the wooden tablets on which a debt acknowledgment was written. These wooden tablets could be sold or bequeathed, but it was not the tablet itself but the debt which it attested what was sold or bequeathed. Further, he attests as a matter of fact that with the transfer of the tablet actions moved over by which the debt could be claimed. The emphasis on the actions in the end may refer to the chance that sometimes not the full debt can be recovered, yet the purchaser or beneficiary cannot claim the deficit from the seller or heir. But how did the actions pass over? Verhagen assumes that for transfer of a debt the cooperation of the debtor (novatio) or creditor (procedural mandate) was still necessary in the middle of the second century, referring for this to Julian in D. 32,5924.

But in other cases Verhagen assumes the existence of adapted actions. He discusses the question how the pledge creditor of a chirograph could claim the debt if the pledge debtor did not pay. He assumes that he got an adapted action for this, facilitated by his possession of the chirograph which evidenced that the debt was pledged. This possibility existed already in the middle of the second century, vide Pomponius in D. 20,1,13,225. There was no need for the cooperation of the debtor (see also CJ 4,39,3 of 223, where a debt may be sold against the will of the debtor). For assignment we have that possibility only developed in the rescript practice of the third century, although Verhagen elsewhere suspects that both practices originated around the same time26. This incongruency aside, if a pledge creditor had an adapted action around the middle of the second century against the debtor, why would a purchaser not have had an adapted action too? The practice of creditors selling debts existed already in the Late Republic27. It would be strange if pledge creditors had their own action to collect the debt and the purchaser not, and this the more because the pledge creditor could also execute the debt by selling it. Would in that case the purchaser not have an adapted action? And indeed, Verhagen suggests this possibility28. But do adapted actions not suggest that the document was considered as basis of the debt, the debt creditor’s assistance not being required?

Similarly, where Verhagen assumes that the mere possession of the chirograph suffices as evidence that the debt is pledged (cooperation of the debtor is not required), it must also suffice as evidence that the debt is due to the possessor or else pledging has no sense. Why, then, may the mere possession of the chirograph not suffice that its rightful possessor is entitled to collect the debt with adapted actions? Verhagen points out that in a procedure the judge might claim the debt for the pledge creditor or sell the debt29. Could such a purchaser exercise an adapted action? It is unlikely that he was dependent on the good will of the debtor. Verhagen deals with this question for the execution of a pledged debt. He suggests that the pledge creditor was either authorised to act on behalf of the pledge debtor (how this solves the problem is not explained) or that the purchaser might have got an adapted action against the debt debtor30.

D. 32,59 does not give a clear answer to the question. The offhand way Julian speaks about bequeathing or selling debts suggests that collecting the debt was no problem. The way he speaks about actions of which the proof is enclosed in the wooden tablets does not sound as if he thought of novatio or a procedural mandate. Then, of these actions the proof is not enclosed in the tablet. A debt presupposes as action the condictio to collect it. Julian may have thought of adapted actions. It is the perspective of the creditor and we may leave the novatio with the required cooperation of the debtor aside. Indeed, the seller or heir may have given a mandate. But what if the debt was sold or bequeathed again and there were no adapted actions? The mandate solution becomes rather complicated: the second purchaser must find the original creditor, or the second seller must give a mandate also for exercising his own mandate. Verhagen’s solution is not impossible but in the practice of finance since the days of Cicero where chirographs change several hands it is not practical31. On the contrary, it would severely hinder transactions.

It may have been different with bequests if we consider what Ulpian says in

D. 30,44,5 and 6 Ulp. 22 ad Sab.32. These texts state that who bequeaths or sells a chirograph intends to transfer the debt as such. In other words, the wooden tablets as such are not the object of the act:

D. 30,44,5-6:

5. Eum, qui chirographum legat, debitum legare, non solum tabulas argumento est venditio: nam cum chirographa veneunt, nomen venisse videtur. 6. Sed et si nomen legetur, benigne id quod debetur accipiendum est, ut actiones adversus debitorem cedantur.

5. He who bequeaths a chirograph bequeaths what is due, not just the document itself, as is proved by sale. For when they sell chirographs they are held to have sold what is due ([= the debt]). 6. But if a debt is bequeathed, what [actually] is owed is the debt, so that actions may be assigned against the debtor33.

The question in § 5 was what was precisely bequeathed: the chirograph, i.e., the tablets, or the debt? It is the debt and the argument to read it this way is the sale of debts. In § 6 Ulpian specifies the debt: it is so to be interpreted as is actually recoverable. For that it is necessary to assign the actions against the debtor to the beneficiary. For the assignment we would expect the procedural mandate.

But regarding pledges and sales, the more important financial transactions with debts, the assumption of adapted actions would fit the later attested actiones utiles of Diocletian for pledge creditors and purchasers. The emperor refers in CJ 4,39,7 of 293/304 to the grant of actiones utiles in the case of pledged or sold debts as standing practice34. But if the pledgee in CJ 4,39,7 gets actiones utiles, it implies that the cooperation of the debtor or the debt creditor is not required. It implies that the mere chirograph suffices for the debt and the obligation of the debtor. In other words: the chirograph was binding for the debtor, irrespective of its possessor (the purchaser). Since the earlier CJ 4,10,2 of 260 refers in the context of purchasing debts to this granting of actions as ‘saepe rescriptum’, this was long before 260 already the case. If we link this to CJ 4,30,3 (see below, nr. 4), it was anyway the case in 215.

The claim will have been a condictio or actio ex stipulatu between debtor and original creditor. Yet with a chirograph and particularly one in which the debtor declared having received the money, there was nothing else to prove and the condictio would apply. The receipt constituted a contractus re which obliged to pay back. Actually, only the chirograph were to be produced (and for its effect as if a confessio, see above). Still, if one maintains that nevertheless the document was not cause of action, one has to consider the case where a chirograph changes hand and a new creditor sues with actiones utiles. In that case the chirograph is the basis of the claim. Verhagen does not deal with this possibility, he sticks to novatio and procedural mandate for the transfer of a claim and thus to a new debt relation or perpetuating the old debt. Yet the texts from the second century of Julian and Ulpian refer to the sale of chirographs. Maintaining that they still had only evidential character is in this context denying the bindingness of the debt which, even if not existing, in any case after the passing of the term must be paid: the chirograph has in this moment become constitutive by legal rule, just as a chirograph with receipt of money lent is irrefutably binding, and just as a confessio in iure is constitutive for the defendant’s obligation, even if there was no debt (D. 42,2, 3 and 5). This point too Verhagen does not take into account.

4 The remedies of the exceptio non numeratae pecuniae and the que rela non numeratae pecuniae

Apart from the above, there is another argument for the binding force of a chirograph in the remedies granted, the exceptio non numeratae pecuniae (ennp) and the querela/quaerimonia non numeratae pecuniae (qnnp). Even more, those chirographs concerning money loans turned into a constitutive document after the passing of a term. The person who had acknowledged a loan in a chirograph could invoke during a term that he did not owe anything because no money had been paid to him. If he did not use this possibility the chirograph became inassailable: its contents were now constitutive for the sum acknowledged (if not, as I shall argue below, the chirograph was already a constitutive document for the debt)35. For this the following argues.

The defense of the debtor is treated in CJ 4,30, De non numerata pecunia – ‘On money not paid’. There are two defenses and they are connected with chirographs. The first is the exceptio non numeratae pecuniae (ennp), the second is the querela/quaerimonia non numeratae pecuniae (qnnp). In both cases the debtor maintained that the money loan which he had acknowledged in the chirograph had not been paid to him. Such a case may have occurred if somebody in expectation of a loan had already signed an iou. The debtor could raise the qnnp against the creditor ex chirographo during a term, scil. after the completion of the chirograph (CJ 4,30,8, 10, 14,2). The effect was that the creditor had to prove that the money acknowledged as debt out of money loan had indeed been paid to the debtor ex chirographo. It concerned thus a reversal of proof, then, as CJ 4,30,10 says, proving that something has not happened is impossible and consequently the burden of proof is transferred to the claiming creditor. But if the debtor let the term pass, the chirograph became binding and the debt had to be paid (CJ 4,30,8,2). It is in this moment that the debt acknowledgement, that is, the document or the chirograph, became irrefutably constitutive for the debt even if the debt did not really exist. Constitutive in the sense that irrespectively of the reasons for drawing it up, the document became the ground for the debt which now had to be paid, as the constitution says.

The second defense is the ennp. As the word exceptio implies, it was a defense the debtor ex chirographo could raise the moment he was cited to pay the debt. Since he could not prove the impossible, viz. that the money had not been paid to him, the claiming creditor had to prove this (CJ 4,30,3, 5, 7). These texts do not mention a term which is understandable because the possibility to use the exceptio begins with the legal claim for the money. But CJ 4,30,14pr. limits the ennp to a term. This would be strange: When would the term begin? The solution lies in CJ 4,30,8,2 and 10 which state that the opportunity for the qnnp irrevocably is lost after the term. That term can only begin after the completion of the chirograph. But once the opportunity to rebut the document is passed, it would be illogical to let it revive if a claim is raised after the term. Consequently the ennp had also a term for its use: the same term as the qnnp. The ennp could be used, but only if the creditor claimed the debt within the term. The two remedies make formally all chirographs concerning money loans pending as to their execution during that period, unless, of course, the chirograph contained also the phrase that the debtor had received the money in which case the remedies were unusable and the chirograph absolutely binding: again because the debtor would contradict himself.

In the above the moment that the chirograph became constitutive was set at the moment the term had passed. Now, if the chirograph were merely evidential, it would have been possible for the debtor to prove that the underlying stipulation was invalid or hampered by a defect, setting the evidence of the chirograph aside. In that case the special remedies were unnecessary. The special remedies of the qnnp or the ennp make only sense if it sufficed for the creditor to refer to the document as evidence of the debt, while the debtor could not bring up counter evidence36. The remedies imply that the chirograph was constitutive because they presume that the chirograph was sufficient proof of a money debt, separately from an underlying stipulation, putting the debtor in the unfortunate position that the only way for him to deny his liability was to prove that money had not been paid out (or, as said in CJ 4,30,8, that he had repaid his debt). Unfortunate, because it means proving a negative fact which is impossible to do (see CJ 4,30,10). That argues to assume that already at the beginning of the third century chirographs were obligationes litteris, as Justinianus later on says (see below) and that the remedies gave a debtor a last chance, making after invocation of them the constitutiveness hanging until it became definitive. If one does not accept this argument, one must accept that in any case they were, after the term had passed, constitutive. And where these remedies were introduced for money debts, it suggests that with other debts chirographs were binding anyway.

As to the term, according to Epit. Cod. Hermogeniani Wis. 1.1 it was for the ennp raised from one year to five years by Diocletian. The interpretator thought it sensible to add this rescript because in Brev. 2.27.1 (= CTh 2.27.1) the term of five years is also mentioned. However, he confuses the term set for claiming the debt ex chirographo from deceased persons with the term set for the ennp. CTh 2.27.3 refers to that term but does not specify it. It only orders to check the age of the chirograph. Has the term passed, the debtor must pay (si iure delata contestationibus tempora debitor taciturnus exegit, cavillationis istius perdat obstaculum). In other words: the chirograph has become absolute. Justinian changed the term from five to two years (CJ 4,30,14pr.), in special cases to thirty days (CJ 4,30,14,2).

The term of one year suggests that the ennp and qnnp originated in the ius honorarium. The earliest mention of it is CJ 4,30,3 of 215, which refers to it as existing law. Since Lenel assumes that Ulpian’s commentary on Sabinus (Ulp. 22 ad Sab. D. 30,44,5) was written under Caracalla (211–217)37, this puts it at about the same time as CJ 4,30,3. It implies that for Ulpian chirographs for money loans were in any case after a year constitutive and by that anyway transferable negotiable instruments. So much for the late-classical period.

But if these remedies originated as the term of one year suggests in the ius honorarium, they must have been created when the praetors could still create new processual remedies, in any case at the latest when Julian established the Edict, namely before or in 138 ad38. That would imply that already in the beginning of the second century ad chirographs were considered constitutive. We are in that case not far in time removed from Eunus, Zosimus and Cinnamus who thought the same.

In Inst. 3,21 (De litterarum obligatione) Justinian says, i.a., plane si quis debere se scripserit, quod numeratum ei non est, de pecunia minime numerata post multum temporis exceptionem opponere non potest: hoc enim saepissime constitutum est. Sic fit, ut et hodie, dum queri non potest, scriptura obligetur: et ex ea nascitur condictio, cessante scilicet verborum obligatione. – ‘Of course, if someone states in writing that he owes a sum of money which was in fact never paid to him, there will come a time when he will no longer be able to resist a claim by using the plea of money not paid. This has frequently been the subject of imperial pronouncements. Even today, when a man can no longer advance this plea, he comes under an obligation by writing, and by this the action of debt arises, while the obligation by words of course ceases39’. Justinian refers to previous constitutions and thus this qualification of the chirograph may have existed already long before, since in any case 215 (CJ 4,30,3). For Justinian the debt acknowledgement in a chirograph was undoubtedly an obligatio litteris and his mention of the old kind of contractus litteris and his knowledge of their nature proves that he attributed to the chirograph constitutive force even before the term had passed. Before it was an obligatio verbis, but once laid down in a chirograph (iou), its nature changed and it became an obligatio litteris, the previous obligation being replaced. Justinian says the same in CJ 4,30,14pr. for both the ennp and qnnp, and in CJ 4,30,14,2 he refers again to the absolute effect40. That was already in 215 the case, thus in the classical period, and it fits the analysis of the remedies. The question is not whether a chirograph is constitutive or evidential. All chirographs are evidential in the moment of creation, but all chirographs turn in the same moment constitutive. They may be refuted for a period after which they become binding even for debts not paid out. The Romans may have considered them at an early stage as obligationes litteris, perhaps not yet in their taxonomy but anyway in practice as the Murecine tablets suggest41.

Considering the acceptance of the transfer of debts in chirographs around the middle of the second century (see nr. 3), and considering the annality of the two remedies, it seems logical to assume that we have here honorary expedients, introduced to assist cases of contested debt acknowledgments42. Their introduction implies that the document was constitutive and hard if not impossible to contest. They mitigate this effect and have their parallel in Paulus’ statement in D. 42,2,8, that a confessus must not be condemned without more for something if it is not certain whether that exists. At the same time they bolstered the validity of chirographs as debt-constituting documents by excluding any protest after a year. A debtor in a chirograph will have been as if in the position of a confessus pro iudicato habetur. That change was acknowledged by Justinian. This is contrary to Verhagen’s assumption that the constitutions of CJ 4,30 formulate rules on evidence, thus restricting the freedom here43. It is exactly the reverse: these rules loosen the strictness of chirographs as self-declarations. Nor is there reason to suppose for every chirograph an underlying stipulation44.

5 Chirographs in the post-classical period

Limiting ourselves for a moment to the undisputable evidence of the remedies, their existence is attested from 215 onwards. Verhagen makes his statement for classical Roman law and what he writes for the later times is just an addendum. But the classical Roman law continues into the deep third century45. That relatives the rescripts of 215 and later: they and the constitutive effect belong also to the classic period. What Ulpian says in 22 ad Sab. D. 30,44,5 and 6 overlaps the late-classical period and the rescripts, certainly the rescript of 215 (CJ 4,30,3)46. Post-classical consequently means that there is less exemplary work present, we can learn less from the jurists of that period, and Kaser reserves the term for the third to sixth century. For the third century he sets the divide with the classical period with the death of Severus Alexander in 235 ad. From then on the classical jurisprudence was lamed47. In short, it is primarily a term of appreciation of the activity of a legal class, and its use was inspired by educational and political purposes48. I therefore assume Verhagen had the high-classical period in mind and did not include the late-classical period. But with that the question is certainly not from the table.

Although restricted to the classical period, Verhagen’s rejection of my view is also based also on the Basilica scholia to B. 23.1.72 (BS 1605/23-24, corresponding with CJ 4,30,10). For that he relies on Litewski who mentions two ‘Ansichte’ (there is no majority of Byzantine commentators rejecting a constitutive nature)49. A scholiast, Theodoros, argues first that the creditor may also prove after two years (the term set by Justinian) that he paid. Then he says in scholion 5 that because the term of the ennp favours the bona fide creditor (after it he is certain of his claim), it would not be unfair to grant the debtor the possibility of proving after the term that nothing had been paid to him. Then, if one party was advantaged, the other party should enjoy the same advantage. Perhaps Theodoros was influenced also by the faculty of the debtor to prove always that he had repaid the money given. But he forgets, apparently, that to prove that nothing has been paid out is impossible (and precisely the reason for the ennp). As the later scholiast Nikaios says: Theodoros has not understood CJ 4,30,10 and confused two things. That constitution confirms that a debtor may always prove that he has repaid the loan, but that he cannot prove something which has not taken place (CJ 4,30,10: … cum inter eum qui factum adseverans onus subiit probationis et negantem numerationem cuius naturali ratione probatio nulla est et ob hoc ad petitorem eius rei necessitatem transferentem magna sit differentia – ‘since there is a big difference between the one who by alleging a fact undergoes the burden of proof, and the one who denies payment, for which by natural reason there is no proof, and on account of this transfers the necessity of this matter to the claimant)50. For that reason the ennp puts the burden of proof on the creditor (and is an advantage for the debtor, not for the creditor)51. As it is, we have to stick to the constitution which says, as does Justinian in I. 3,21 (not dealt with by Verhagen), that in his time the cautio was basically irrefutable and an obligatio litteris. The reason is that it is the debtor himself who has written out his acknowledgement of debt (cf. CJ 4,30,13). It is strong evidence. It is not impossible that no transfer of money took place, either because as in CJ 4,30,10 a promise was not fulfilled, or that the creditor could not pay after all (deceit exercised would lead primarily to an exceptio doli or actio de dolo), but because it is impossible to prove a non-event, as a favour to the debtor ex chirographo the ennp is granted. Theodoros lost sight of this (as Nikaios subsequently wrote: Καλὲ Θεόδωρε, οὐδ’ ὅλως ἐνενόησας τὴν διατάξιν – ‘Dear Theodoros, you have not quite understood the law’). Thus this text cannot support Verhagen’s view.

6 Conclusion

In his article Verhagen examines the texts which record or mention a chirograph. In line with his assumption that they are mere evidential in the classical period, he searches for the underlying cause of the debt. This research is in itself not wrong but leaves the essential point aside, viz. that the chirograph had the character of a confessio and as such decided the procedural position of the debtor, certainly if the chirograph recorded also the receipt of the money due: the evidential force was in principle irreversible and a judge had to condemn. Theoretically and for us dogmatically the chirograph was still evidential, but we see that in practice it was treated as constitutive: the document defined the bond of the debtor. Already in the first century ad in the Murecine tablets debts, although entered by stipulation or in another way, are once they have been laid down in a chirograph treated by the promisors as arising out of the chirograph and rightly so: the irreversible evidence of the chirograph making it binding on itself left them no other option. This bindingness for the debt or will have made it easy for the creditor to sell it. The later attested adapted actions for pledge creditors and purchasers confirm that no novatio or procedural mandate were necessary for their transfer, possession sufficed. Also the introduction of the exceptio and querimonia non numeratae pecuniae attest to the irrefutability of chirographs and imply their constitutive force. They made it possible by reversal of proof that with money loans debtors could complain that they had not received the money. Not using these remedies meant that the chirographs became constitutive by law even if not true. To underline their evidential origin is certainly not wrong, but one must allow for the possibility of a change in legal nature, viz. that the document is considered by its users as constitutive, particularly when later sources show that this had happened. The texts from Murecine suggest that that change took already in the first century place. It was then but a matter of time that they were redefined in the Roman taxonomy as obligationes litteris, implicitly by the said adapted actions and the remedies, explicitly by Justinian and as confirmed by the scholia in the Basilica.

Notes

1

H.L.E. Verhagen, Chirographs in classical Roman law: constitutive or probative?, rida, 65 (2018), p. 251–306; referred to in: H.L.E. Verhagen, Security and credit in Roman law: the historical evolution of pignus and hypotheca, Oxford 2022, p. 251 in the context of the question whether chirographs were negotiable instruments, which Verhagen denies, referring to his rida article. I presume that he means that chirographs being under all circumstances of probatory nature could not for that reason be negotiable, requiring still a procedural mandate or a novation as he says on p. 251.

2

E. Jakab, Chirographum in Theorie und Praxis, Römische JurisprudenzDogmatik, Überlieferung, Rezeption: Festschrift für Detlef Liebs zum 75. Geburtstag, Berlin 2011; B. Sirks, Chirographs: negotiable instruments?, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung, 133 (2016), p. 265–285: p. 268–269 for the research question.

3

Verhagen, Chirographs (supra, n. 1), p. 259–269.

4

Verhagen, Chirographs (supra, n. 1), p. 266–267.

5

J. Platschek, Das Edikt ‘de pecunia constituta’, die römische Erfüllungszusage und ihre Einbettung in den hellenistischen Kreditverkehr, [Münchener Beiträge, 106], München 2013, p. 258ff., part. p. 260. He sees the chirograph as ‘Schuldanerkenntnis’; see on this below.

6

Verhagen, Chirographs (supra, n. 1), p. 273.

7

Verhagen, Chirographs (supra, n. 1), p. 274–275.

8

Platschek, Das Edikt (supra, n. 5), p. 260: ‘Für die Verwender dieser Urkunden ist – ganz in hellenistischem Denken verfangen – nicht die Vornahme der Stipulation der kennzeichnende Akt, sondern die Ausstellung der Urkunde’.

9

Verhagen, Chirographs (supra, n. 1), p. 266–267. The difference between chirographs and syngraphs is, as Asconius relates, the form. Syngraphs are documents, drawn up in double. What Asconius says about the trustworthiness of both does not fit reality: chirographs could also be against fidelity, as is proved by the remedies of loans not paid out.

10

Verhagen, Chirographs (supra, n. 1), p. 266–267.

11

Verhagen, Chirographs (supra, n. 1), p. 275.

12

Tr. D.P. Kehoe, The Codex of Justinian, ed. B.W. Frier, Vol. ii, Cambridge 2016.

13

Similarly with TPSulp. 114, 55 and 79. Verhagen reads these too as referring to the original cause of debt, but the concerned persons simply refer to the chirograph as cause and since in two receipt of the money is acknowledged, the chirographs were irreversible evidence and thus in practice constitutive.

14

See for a potential case of this D. 44,4,17pr., below note 16.

15

See the case of D. 44,4,17pr., a text of Scaevola, hence second half of the second century, mentioned in note 15.

16

Regarding D. 44,4,17pr., which Verhagen, Chirographs (supra, n. 1), p. 284–288 discusses, the reading ex chirographo ex stipulatu may be read as a asyndeton. See also G.C. Gebauer and G.A. Spangenberg, I, Institutiones et Digesta, Göttingen 1776, who a.h.l. suggest: perhaps ex chirographo exve stipulatu, be it that the seven editions used have merely et. It seems to me that the error consisted in referring in a letter to interest as if already due in the past (quasi usuras praeteritas), not being, however, due at all. Rusticanus would then imply literary clumsiness. That reference could have been interpreted as an admission of indebtedness on ground of the dotis promissio and hence the claimant acted by actio ex stipulatu with the chirograph as evidence, or ex stipulatu for the interest (wrongly) admitted in the document (the pactum with the dowry provided that instead of interest the father should pay the expenses). The question is whether the son-in-law, who could choose to sue on either account (the dotis promissio or the chirograph), could be rebutted with the exceptio doli. The answer is affirmative. It applied in both cases since it was against good faith to sue on the dotis promissio which did not deal with interest, and to sue on the chirograph since the father erred because no interest was due. We see that here only an exceptio doli was of assistance against the chirograph.

17

The exception being in the context of the lex Aquilia that the slave was not killed.

18

See for the confessio in iure M. Kaser [und] K. Hackl, Das römische Zivilprozessrecht, München 1996, p. 270–273. In any case, there was no room for a debtor in a chirograph to escape condemnation, except for the querela/quaerimonia non numeratae pecuniae (qnnp) and the exception non numeratae pecuniae (ennp) about which hereafter. The ennp may be seen as a parallel for money loan to the exception with the lex Aquilia of the slave not having been killed.

19

See on the use of the obligatio litterarum in the account books as the parallel of stipulations for establishing obligations over a distance R.M. Thilo, Der codex accepti et expensi im römischen Recht, Göttingen 1980. H.L.W. Nelson [und] U. Manthe, Gai Institutiones iii 88–181, Berlin 1999, p. 218, are of the opinion that peregrine chirographs were only ‘schuldbegründend’ if not in combination with a stipulation. That does not make sense. If combined in this way, parties would have been bound in two ways. That is not unusual.

20

Verhagen, Chirographs (supra, n. 1), p. 260.

21

Verhagen, Chirographs (supra, n. 1), p. 262–263 maintains that chirographs were only non-rebuttable in Greek-Hellenistic law of procedure and was unknown in Roman law at the time of Gaius. In view of what I set out above on the confessio I doubt this. Gaius wrote that chirographs and syngraphs were obligationes litterarum. Verhagen reads this as induced by the non-rebuttable evidential character for non-Romans.

22

Verhagen, Security (supra, n. 1), p. 251.

23

The original translation by Mr Tom Braun (The Digest of Justinian, ed. A. Watson, Philadelphia 1998 (2nd ed.) and which served as basis for my translations runs: ‘A testator who bequeathes a note-of-hand has in mind not so much the document as the right of action which the document itself confirms. It is well known that we use the term ‘bond’ for the action itself, since when a note-of-hand is sold we understand that the debt has been sold. And indeed if anyone bequeaths the name of a debtor, this is understood to be a legacy of what is to be had from the actions’.

24

Verhagen, Security (supra, n. 1), p. 251.

25

Verhagen, Security (supra, n. 1), p. 252, 249 and 246 note 5.

26

Verhagen, Security (supra, n. 1), p. 248 note 28.

27

Verhagen, Security (supra, n. 1), p. 247.

28

Verhagen, Security (supra, n. 1), p. 258.

29

Verhagen, Security (supra, n. 1), p. 257.

30

Verhagen, Security (supra, n. 1), p. 258.

31

Are we to assume that when a chirograph is bequeathed after the death of the creditor the heir must convince the debtor to perform a novatio? Or that he grants the legatee a procedural mandate? The first is too uncertain, the debtor may refuse to accept the new creditor; the latter only depends on the heir who can be forced to cooperate. And if the debt is sold, are we to assume that the seller could be forced to cooperate by way of an actio empti?

32

Not dealt with by Verhagen in Chirographs or Security (supra, n. 1).

33

Based on the original translation by Mr Tom Braun (supra, n. 23): ‘[5.] He who bequeaths a note-of-hand bequeaths the claim, not just the document itself, as is proved by sale. For when they sell notes-of-hand they are held to have sold the claim for debt. [6.] But if the claim is bequeathed, the debt must be construed benevolently so that actions may be assigned against the debtor’. In line with the translation by C. Feust in Das Corpus juris civilis in’s deutsche übersetzt von einem vereine Rechtsgelehrter und hrsg. von C.E. Otto, B. Schilling, und C.F.F. Sintenis, Vol. 6, Leipzig 1832, and D. 32,59 I read benevolently as indicating that actually only what might be recovered from the debtor is bequeathed.

34

Verhagen, Security (supra, n. 1), p. 252 rejects the idea that with the actio Serviana the chirograph as such could be claimed. I fail to see how the text could lead to this, nor would my view that it was a negotiable instrument imply that the purchaser or pledgee of a chirograph be interested in the actual wooden document. They would of course be interested in what it represented: the debt.

35

Sirks, Chirographs (supra, n. 2), p. 273: ‘Whereas before the chirograph would have been, from the debtor’s point of view, in practice constitutive for the debt in regard to its possessor, it now became in all respects constitutive for the debt in itself. This restriction must have facilitated the transfer of a chirograph of a loan debt enormously and must have been a great stimulant for finance and commerce: the creditor/possessor simply waited one year before transferring. When this restriction was introduced is unknown: it existed in any case in 215–217’.

36

I. Fargnoli, Condictio aus Darlehen, in: Handbuch des Römischen Privatrechts, hrsg. v. U. Babusiaux e.a., Tübingen 2023, p. 1910, discusses the ennp and qnnp in the context of a mutuum cum stipulatione and the condictio, whereas these two remedies are only mentioned in connection with the chirograph/cautio. If the ennp was indeed applied in case of a stipulation, it also shows that there was hardly or no counter-evidence possible; and if in that case there was evidence in the form of a document, it will have been even worse, making as set out above the chirograph as good as a constitutive document. But it is possible that the remedies were especially created for chirographs which already existed in the first century ad.

37

O. Lenel, Palingenesia iuris civilis: iuris consultorum reliquiae quae Iustiniani Digestis continentur, ceteraque iuris prudentiae civilis fragmenta minora secundum auctores et libres, Lipsiae 1889, p. 1019.

38

Thus already A.M. Busca, Ancora in tema di ‘exceptio N.N.P.’, sdhi, 51 (1985), p. 477-489, who places the introduction in the first or second century ad.

39

Translation based on P. Birks [and] G. McLeod, Justinian’s Institutes, Translated with an Introduction; with the Latin text of P. Krueger, London 1987. Their translation of the phrase et ex ea … obligatione is unsustainable.

40

Verhagen does not mention Inst. 3,21 and CJ 4,30,14, probably because he restricts himself to the classical law.

41

So also H.L.W. Nelson [and] U. Manthe, Gai Institutiones iii 88–181, Berlin 1999, p. 520: schuldbegründete Urkunde.

42

Platschek, Das Edikt (supra, n. 5), p. 11ff. assumes the regulation for pecunia constituta had its origin in honorary law. Although he discusses chirographa, he does not discuss the ennp and qnnp, nor CJ 4,30. However, would it not be likely that the praetor arranged both pecunia constituta, which will often have been laid down in a chirograph, and the ennp/qnnp, which are the obvious exceptions to the bindingness of pecunia constituta? And in connexion with the absolute effect of pecunia constituta the transferability of chirographa by allowing actiones utiles? Hard evidence unfortunately lacks, but the connexion is obvious.

43

Verhagen, Chirographs (supra, n. 1), p. 259–260. Platschek, Das Edikt (supra, n. 5) does not deal with CJ 4,30.

44

Verhagen, Chirographs (supra, n. 1), p. 298. His reference here to W. Litewski, Non numerata pecunia im klassischen römischen Recht, sdhi, 60 (1994), p. 411, who would have written that all jurists’ opinions and rescripts on the exceptio non numeratae pecuniae concern debts arising out of stipulation and therefore chirographs are not constitutive, is not supported by the cited page in Litewski’s article.

45

But why do we make this distinction between pre-classical, classical and postclassical period anyway? Is there a fundamental change in the law or the jurisprudence? The classical period is supposed to have been the high life of Roman jurisprudence, when jurists (better: specialists in law), sophisticated the law and shaped it. Where does this characterisation originate? Kaser sees as its characteristic that it is ‘Juristenrecht’, of which the ‘Bausteine’ lie in the analysis of cases. The jurists do not yet develop a dogmatical system on basis of these cases, they develop concepts be it not yet in a closed system. Their terminology is still elastic. See M. Kaser, Das römische Privatrecht, 1. Abschnitt, München 1971, p. 177: ‘… setzt sie [die Blüte] sich in der klassischen Jurisprudenz noch tief bis ins 3. Jh. fort’. In my opinion there are two changes visible. First of all, the tendency set in around 100 bc to accommodate the existing law to the Stoic systematics and methodology is continued and becomes generally accepted from around 150 ad onwards. After that there are hardly changes until the middle of the fifth century. Second, and in combination with this, the rather haphazard way of law creation by the praetorian and aedilician edicts, by senatusconsults and leges rogatae, is slowly replaced in the second century ad by fixation of the edicts, by orations in the senate, by imperial edicts and other imperial decisions. For the structure between these individual statements of law jurisprudence provides the links through commentaries and other literature. Institutiones provide the general surveys. As such the great commentaries of around the turn of the second and third century encapsulate the combined result of both developments. Thus a classical period would run from ca 100 bc till ca 150 ad.

46

Kaser, Das römische Privatrecht (supra, n. 45), p. 181–182; Lenel places the writing of the Libri ad Sabinum under Caracalla (211–217) (see note 38). Kaser’s description is not new. We see the same characteristics for the first time expressed by Hofacker and later by Savigny. Karl Christoph Hofacker, Entwurf einer systematischen Methode im Vortrage des ungemischten römischen Rechts: nebst einer Anzeige seiner nach demselben einzurichtenden Vorlesungen, Göttingen 1771; Karl Christoph Hofacker, Institutiones juris romani methodo systematica adornatae, Gottingae 1773. Friedrich Carl von Savigny, Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft, Heidelberg 1814, p. 29–30. For them there was a period in which the Roman jurisprudents developed in freedom the law, by deducing from cases general rules and vice versa applying these to other cases, without interference from the emperors. Their intellectual working should serve, so these two authors, as example for modern students of law. Hence the designation of this period as classic in the sense of ‘outstanding’, ‘first class’, ‘exemplary’. The emperors were supreme lawgivers and judges, but did not define themselves as the absolute source of law as later on in the fourth and fifth centuries their successors and particularly in the sixth century Justinian did. Platschek, Das Edikt (supra, n. 5) does not treat of D. 30,44,5 and 6, nor of D. 32,59.

47

M. Kaser, Das römische Privatrecht, 2. Abschnitt, München 1975, p. 3: ‘Mit den politischen Wirren … erlahmte auch die klassische Rechtswissenschaft. Die literarische Produktion der klassischen Juristen versiegte um die Jahrhundertmitte’.

48

Hofacker wanted a new kind of Roman law teaching, free from the traditional way, and Savigny wanted to teach jurists the methodology to create a German civil code.

49

Verhagen, Chirographs (supra, n. 1), p. 301, referring to Litewski, Non numerata pecunia (supra, n. 44), p. 438. However, Litewski’s rendering of the scholia suggests unfortunately more than two scholiasts.

50

Tr. D.P. Kehoe (supra, n. 12).

51

Theodoros turned the case around. The ennp was an advantage for the debtor and a disadvantage for the creditor who now had to rely on more evidence than the chirograph. Theodoros then extend this burden to the time after the term and calls it an advantage, which it not is. On the basis of this wrong characterisation he argues now to grant the debtor the same advantage, viz. to prove after the term that he was not paid. But the impossibility of this was precisely the reason to grant the debtor the ennp.

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