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Home , Law of obligations, Stipulatio

CHAPTER TWO

MEDIEVAL LEGAL SCHOLARSHIP

2.1 Alteri stipulari nemo potest; the medieval approach in general

In the Roman alteri (and mandatum alteri) it was the stipulator (or the mandator) who stipulated that something be performed to someone absent, a third-party benefi ci ary. It was the stipulator (or mandatary) who made the fi rst move, not the promisor (or the mandatary). As was shown, the main question was whether the was effective. In the Middle Ages, both in Canon and in the indigenous law of Castile, a similar question was discussed. These were not as hostile towards the idea of stipulating in favour of a third party as the of obligations and demonstrated that the Roman approach deviated from prevailing legal practice at the time the study of the Corpus iuris was taken up. In and in Castilian law the central issue was not whether it was possible to stipulate in favour of a third party, but rather in which way one could obligate oneself by way of a promise towards an absent person. It was the promisor who wanted to bind himself. The question was whether this could be achieved through a promise made in the presence of a kind of intermediary, someone who accepted the promise instead of the absent person. Henceforth this intermediary will be termed stipulator, i.e. the recipient of the promise who was present when the promise was made. In theory, one could argue that this stipulator could act as a kind of intermediary, who ensured that consent between the promisor and the third party was established, someone comparable to the present-day agent or representative. However, not only was the concept of agency or representation—except for the exceptional case of a money loan—not accepted in the Roman , but for many mere consent did not suffi ce. Both the stipulatio and usually also the real con- tracts required the presence of both parties. Thus, from a Roman law perspective, it was doubtful whether it was possible, in general terms, to bind oneself to someone absent through an ‘intermediary’. In the medieval context the Roman maxim alteri stipulari nemo potest was understood to express various things, not only that the stipulatio alteri was 22 chapter two ineffective for the parties to the contract without the stipulator having an interest in the per formance. It also implied that a third party could not acquire an enforceable right, regardless of the kind of contract or legal act the pact in his favour was concluded. For those exceptional cases in the where the third party did acquire a right, it was argued that the maxim alteri stipulari nemo potest did not apply.1 Moreover, as we will see below, the maxim was also regarded to be an obstacle to binding oneself through a promise to an absent benefi ciary by means of someone physically present at the time the promise was made and acting as an intermediary.

2.2 The example of Canon law

Let us have a closer look at a medieval system of law which already existed before the study of Roman law was taken up, viz. Canon law. In so doing one should realize that the character of Canon law differed from that of Roman law. In a great deal of the Roman sources not much doctrine can be found and many texts have a casuistic character. Canon law, on the other hand, was dominated by axioms, universally applicable standards resulting from Divine Revelation or defi ned by theology and principles which can be reduced to authoritative texts in the Scriptures and the Church Fathers.2 Also the Canon law of contracts was dominated by a general ethical principle, viz. that there should be no falsity in our speaking. Gratian’s (1140/45), a private but authoritative compilation of Canon law texts, contains a fragment derived from the commentary upon the Gospel according to St Matthew by bishop Chromatius of Aquileja († 407).3 Chromatius took as a starting point the Lord’s exhortation in the Sermon on the Mount not to swear: “Let your yes mean yes and your no mean no. Anything more is from the evil one” (St Matthew 5.37). On the basis of these words, he argued that there should be no difference between

1 See the gloss nihil agit ad Inst. 3.19.4. 2 The fi rst lines (D.1 a.c.1) of Gratian’s Decree (1140/45), inspired after St Matthew 7.12, already set the pace: Omnia ergo quaecumque uultis ut faciant uobis homines et uos facite eis. Haec est enim lex et prophetae. 3 Chromatius, Tractatus in Matthaeum XXIV.4, in CCSL 9A, pp. 185–498. The fragment can be found on p. 311. In Gratian’s Decree these lines are ascribed to St John Chrysostomos († 407), but this fact will not have decreased the moral authority of the text.