TIM •, PIGNUS ; Ortolan Inst. i& 1208 et seq. ; Mackeldey, RUm. Rec'ht, 396-408. I3e -sides the above-named contractus reales, large class of contracts which had no special n am es, and were thence called contractus inno minati, were incladcd under this head, from the fact that they, like the former, gave rise the actio Frees criptis verb& . Some of these were the contracts of exchange, of mutual compro mise, of' doubtful or contested claims (some what resembling our accord and satisfaction), of factorship, ep. See Mackeldey, 409– 414.
3. Contracts were entered into verbia, by a formal ,interrogation by one party and re sponse by the other. The interrogation was called stipulatio, and the party masking it, reus stipulandi. The response was called promissio, and the respondent, reus pro: mittendi. The contract itself, consisting of the interrogation and response, was often called stipulatio. In the time of the earlier jurists, the stipulation could only be entered into by the use of Certain formulary words by the parties : as, for instance, Spondes? do yon promise ? Spondeo, I promise ; Dabis I will you give ? Dabo, I will give ; Facies? will you do this ? Faciam, I will do it, etc. etc. But by a constitution of the emperor Leo, A.D. 469, the obligation to use these par ticular words was done away, and any words which expressed the meaning of the parties were allowed to create a valid stipulation, and any language understood by the parties might be used with as much effect as Latin. Such contracts were called vcrbis, because their validity depended entirely upon the uss of the words. The mere agreement of the parties without using the question and re. sponse could not beget a stipulation ; and, on the other hand, if the question and response had been used, the obligation was created although there noight be an absence of con sent. In this latter case, however, equitable relief would be granted by the prmtor. Orto lan, Inst. 1240. Stipulations, and, indeed, all other forms of contracts, might be made either pure, i.e. absolutely, or in diem, i.e. to take
effect at a future day, or sub condaione, i.e. conditionally. But some kinds of conditions, such as those physically impossible, were inadmissible, and Invalidated the contract; while others, such as those which were ab. surd, were themselves invalidated, and the contract was considered as having been made absolutely. Mackeldey, 415-421; Ortolan, Inst. 1235-1413 ; Inst. 3.13-20.
4. Contracts entered into literis were obso lete in the reign of Justinian. In the earlier days of Roman jurisprudence, every citizen kept a private account-book. If a creditor, at the request of his debtor, entered in such book his charge against his debtor, such entry, in pursuance of the request, constituted not merely evidence of a contract, but the con tract Itself. This was the contract formed literis, in writing. The debtor, on his part, might also make a corresponding entry of the transaction in his own book This was, m fact, expected of him, and was generally done ; but it seems not to have been necessary to the validity of the contract. The entry was made in the form of a fictitious payment ; it was allowable only in pecuniary transactions ; it must be simple and unconditional, and could not be made to take effect at a future day. The charge might be made against the ori ginal debtor, a re in personam, or against a third person who agreed to take his place, a persona in personam. This species of literal contract was called nomina, nomina transcrip titia, or acceptilatio et expensilatio. Ortolan, Inst. a 1414-1428.
5. There were two other literal contracts known to the early jurisprudence, called syn graphia and clbirographia ; but these even in the time of Gains had become so nearly obdo lete that very little is known about them. All these, it must be borne in mind, were contracts themselves, not merely evidences of a contract ; and this distinguishes them from the instruinents of writing in use during the latter ages of the civil law. Ortolan, Inst. a 1414-1441 ; Mackeldey, 422.