Revue Internationale des Droits de l'Antiquite, Ser. 3, Vol. 8 (1961), pp. 391-416


Until recently, it would seem to have been agreed among Romanists that in early classical roman law only one form of words, namely 'Habesne acceptum? habeo' was permitted for a valid 'acceptilatio', but that by the time of Ulpian a second form (and no more), namely 'Acceptum facis? facio' had been accepted. Indeed, that this was the position is accepted without discussion by Mr. Nicholas in a very thorough article on the form of the stipulation. Mr. Nicholas' main goal is to show that in classical law 'stipulatio' was a formal act and required to be made in one of six possible forms. In support of this, he stresses the importance of formal words in ritual acts in Roman law and after dealing with other acts which require formal words he goes on:

"More important, however, is the parallel, already mentioned, of 'acceptilatio'. For this is intimately connected with the stipulation, of which it is, indeed, the 'contrarius actus'. For 'acceptilatio' Gaius admits only one formula which is given also by Ulpian in the Digest, with the addition that a second is also admissible... The form of 'acceptilatio' was apparently never altered by legislation for Justinian in the Institutes reproduces Gaius, with Papinian's addition as to Greek."

Perhaps the case of 'acceptilatio' is even more fundamental for Mr. Nicholas than he himself admits, since it, alone of the institutions mentioned by him in support of his argument that the stipulation required formal words is, like stipulation, without doubt 'iuris gentium'. This is an important point. It is one thing to show that in the ius civile there are ritual acts with formal words, quite another to show that ritual acts with formal words occur also in that part of Roman law which was open to peregrines. After all, the main purpose of the introduction of the ius gentium was to facilitate foreign trade and to protect peregrini and it is accepted that this is best accomplished by making the law as simple as possible.

It will be maintained in the present note, 1) that there is a vast difference in the meaning of 'acceptum facere' and 'acceptum habere', 2) that it was because of his meaning, not its form, that 'accepta facis decem? facio' did not make a valid 'acceptilatio' until perhaps as late as Ulpian, 3) that its acceptance at that time is very good evidence that 'acceptilatio' did not need formal words, and 4) that other evidence is available tending to the same conclusion.

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