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Literal contracts in Roman law
Literal contracts (''contractus litteris'') formed part of the Roman law of contracts. Of uncertain origin, in terms of time and any historical development, they are often seen as subsidiary in the Roman law to other forms. They had developed by at the latest 100 BC, and continued into the late Roman Empire.
The form itself was a written entry in some form of account book, which Gaius describes as either replacing an existing obligation from another source, or transferring a debt from one person to another. At least the second form was unavailable to peregrines. It seems to have been limited to certain sums which were unconditional and which had the consent of the debtor. Its later development was shaped by changes in the oral contract, the ''stipulatio''.
==Origin==
The origin of the literal contract in uncertain. It is only towards the end of the second century BC that the evidence is suitably lucid for its existence.〔 The ability to discern a distinction between financial accounts in general and a literal contract plagues early sources.〔 Many, for example, describe the recording of receipts rather than disbursements. Gaius, writing later, considers the disbursement the central element, and so this throws doubt on the efficacy of the earlier sources to establish the presence of a literal contract.〔 Dragomir Stojčević notes the presence of the terms "af" and "abs" in the early texts of Velius Longus, drawing on the later works of Cicero to demonstrate that they were only used in conjunction with literal accounts.〔 However, the distinction between general accounts and a literal contract cannot be showed to any certainty, and the texts are still concerned only with the recording of receipts.〔 Cicero's account of a knight called C. Canius, known to have been active in 115 BC, does at least provide significant (and accepted) evidence of them literal contract's existence at this time.〔
Alan Watson identifies the main areas of uncertainty, which, if showed one way or the other, would elucidate the dating problem. Of Gaius' two forms, which was the original form would also give an indication of the historical development. If the ''a re in personam'' form came first, then it must surely have come after the creation of ''bonae fidei'' contract forms, since the transfer of a ''stipulatio'' of ''mutuum'' form into a literal contract would have otherwise given no real benefit. It might have done if the literal contract was used to consolidate several different debts between two parties, to simplify them into a single action, but none of the texts point to this: they refer to a singular preceding obligation.〔 If the ''a personam in personam'' form came first, then the development could have come much earlier.〔 The consent of the debtor was probably required: this is stated as fact by some modern lawyers,〔 although Watson points to the alternative explanation of Stojčević. Under the normal explanation, the tablets of Herculaneum show that something other than the written contract itself was required, necessarily debtor's consent.〔 Exactly how the record shows the debtor's consent is uncertain, however.〔
抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』
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