The importance of form and formality

(a) Form as the oldest norm

The history of stipulation provides a good example of the importance of form and formalism in Roman law.⁹⁰ Legal effects in ancient Roman law, as in other early legal systems, could be achieved only by way of formal acts. When we think of formal transactions today, we see the form as accompanying the legal act; it has usually been introduced by the legislator, for specific policy considerations, as an additional require-ment for the validity ofthat act.⁹¹ But this, in the development of a legal system, is a relatively modern thinking pattern. Originally, form itself created the legal effect; it was, as Gerhard Dulckeit⁹² has put it,

"Wirkform" (effective form) rather than "Schutzform" (protective form).

Compliance with the form was the actual reason (not only a necessary requirement) for the existence and recognition of a legal effect.

Historically, this concept of form is based on a primitive belief in its magical nature.⁹³ If we take, for example, the law of obligations, we have seen that, originally, the hostage given to the creditor as a pledge was probably physically bound: "obligatus" in the literal sense. When this real bond was in the course of time superseded by an ideal, imaginary bond, the binding nature of the latter had to be secured somehow. Therefore, the creditor's real power over the body of the

8g As to the "two souls in Justinian's bosom" in this context, see, Levy, Obligationenrecht, p. 59.

K9 For the later history of stipulation cf. infra, pp. 546 sqq.

90 One of the best accounts is still that by R. von Jhering, Geist II, pp. 470 sqq.; cf. also Ludwig Mitteis, Romisches Privatrecht bis auf die Zeit Diokletians, I (1908), pp. 225 sqq.

У1 Differently, for example, art. 1341 code civil, which prescribes that all transactions of more than 5 000 ffrs must take the form of private writing or of a notarial document. But non-observance of the form does not entail invalidity of the transaction. Only the testimony of witnesses is excluded; in other words, the informal transaction cannot be proved in court.

Also, according to the Statute of Frauds (1677, England), transactions which do not observe the prescribed forms ("a note or memorandum of the agreement in writing and signed by the party to be charged therewith") are nor void, but rather unenforceable; on the Statute of Frauds, Simpson, History, pp. 599 sqq. For alternative consequences of a lack of form in German law, cf. Rudolf Westerhoff, "Wie begrunden wir Formnichtigkeit?", (1984) 184 Archiv fiir die civilistische Praxis 376 sq.

92 "Zur Lehre vom Rechtsgeschaft im klassischen romischen Recht", in: Festschrift fur Fritz Schulz, vol. I (1951), pp. 160 sqq. Cf. also Jors/Kunkel/Wcnger, p. 90; Kaser, RPr I, pp. 39 sq.

уз Cf. Kaser, Altromisches ins, pp. 301 sqq.; idem, RPr I, p. 28; Dulckeit, Festschrift Schulz, vol. I, pp. 162 sq.; contra: Geoffrey MacCormack, "Formalism, Symbolism and Magic in Early Roman Law", (1969) 37 TR 439 sqq., 447 sqq.; idem, "Hacgerstroem's Magical Interpretation of Roman Law", (1969) 4 The Irish Jurist 153 sqq.

Stipulatio 83 person who was liable came to be replaced by a magical power over him and it was for this purpose that a formal ritual had to be performed.

These rituals were devised by the state priests who, at that time, were not only in charge of sacral affairs, but were also responsible for the application and development of the law.⁹⁴ They all entailed the uttering of precisely set, formal words, often reinforced by the performance of symbolic acts, as, for example, laying one's hands or a staff on the object of the transaction. It was only by means of these rituals that legal transactions could be effected: compliance with the ritual formalities brought about a real (but invisible and in so far magical) change in the relationships between the parties concerned. The slightest mistake would wreck the whole transaction: every reader of fairy tales knows that magical effects can be engendered only by a most punctilious recital of a set formula. Procedure has always been a prominent arena for this kind of formalism and thus we cannot be surprised to read what Gaius reports about "nimia subtilitas veterum"

relating to the legis actio procedure:

"unde cum qui de vitibus succisis ita egisset, ut in actione vites nominaret, responsum est rem perdidissc, quia debuisset arbores nominare, eo quod lex XII tabularum, ex qua de vitibus succisis actio compcteret, generaliter de arboribus succisis loqueretur.'"^

A very similar formalism is known to have governed the old Germanic procedure:⁹⁶ qui cadit a syllaba, cadit a causa. But whilst the old legis actiones were by the time of classical law no longer in use, many of the formal transactions of private law were; and the stipulatio (besides mancipatio and in iure cessio) was one of the most important of them.

Even though there was now, of course, no longer any magic in an exchange of oral question and answer in free, if corresponding, words, its basic structure had, as we have seen, been reverently preserved. As a consequence, the liability of whoever had made a promise could not extend beyond what was covered by the words used; but, on the other hand, he would also be held relentlessly bound by those words. As long as the formalities had been correctly executed, the act was fully

94 As to the pontifical nature of the ancient Roman jurisprudence, cf. Jhering, Geist II, pp. 390 sqq.; Kaser, Altromisches ins, pp. 345 sqq.; Schulz, RLS, pp. 6 sqq., 15 sqq.;

Wi eacker, RR, pp. 310 sqq. and passi m.

95 Gai. IV, 11; cf. also IV. 30.

ь Cf. E. Kaufmann, in: HRG, vol. I, col. 1163 sqq.; for grotesque extremes in the 13th/14th centuries cf., for example, 68, 7 of the Lehenrecht of the Sachsenspiegel, where Eike von Repgow found it necessary to state: "Wenn der Mann im Lehengericht sich die is'ase putzt oder sich schneuzt oder spuckt oder gahnt oder wenn er hustet oder niest oder auj der anderen Seite seines Vorsprechers steht, als er zunachst stand, oder wenn er sich schicklich umschaut oder Fliegen, Mucken oder Bremsen schicklich von sich scheucht, so hat er deswegen kein Strafgeld verwirkt, obwohl dies einige Leute glauben" (cf. the edition by C. Schott, 1984) (If, in the feudal court, the man blows his nose or spits or yawns or when he coughs or sneezes or stands on the other side of his prompt than he first stood, or if he turns around in gentlemanly fashion or brisks away in gentlemanly fashion flies, mosquitoes or horseflies, he does not on that account incur a penalty, although some people think so).

84 The Law of Obligations effective, no matter whether those effects had in actual fact been willed or not. It is obvious that under those circumstances a gap could develop between what was wanted and what was formally declared and, if one took only the latter into consideration, hard and inequitable results were likely to ensue. But it is quite ahistorical to envisage the problem in this way with regard to an ancient legal system. Right until the Republic it would not have occurred to the Roman lawyers that a discrepancy between will and word could exist.⁹⁷ The actual reason for the desired legal result was not the consent between the parties but the formal exchange of the words. The true will of the parties could be discovered only from the words.⁹⁸

One may, incidentally, well raise the question whether strict adherence to this principle was really as harsh as it seems to us today.

When we are inclined to take offence at the fact that a deviation from the required form would invalidate the whole transaction, even though there might have been substantive agreement between the parties, we proceed from the supposition that the parties really wanted to be bound under those circumstances and merely somewhat carelessly neglected to observe the form. But it is equally possible that non-compliance with the form signified the intention of the parties not to be bound!

Considering the simple and uncomplicated nature of the stipulation, so familiar to every Roman citizen, the second possibility is arguably the rule rather than the exception.⁹⁹ Furthermore, in predominantly agrarian early societies legal transactions were not as commonplace as they are today and were therefore approached with gravity and concentration. Considering the importance of the act, one therefore did not mind the demands made upon the parties' precision and attention.

Thus what we regard as formalism today was not perceived as such in early Roman law. Form, then, in this sense, can be said to be the oldest norm.

100

(b) From "effective" form to "protective" form

In the course of time, however, this attitude changed. In the wake of the rise of the informal contracts, the meeting of the minds, the agreement of the parties concerned, came to be accepted increasingly as the cornerstone of and actual effective reason for all contractual

97 The same applies to other early legal systems. Two examples from the Bible spring to mind: Jacob' s marriage to Leah and Isaac' s blessing given to Jacob instead of to Esau were both unquestionably valid despite Jacob' s and Laban' s deceit.

98 Along the same line Cclia Wasserstein Fassberg, "For m and Formalism: A Case Study", (1983) 31 American Journal of Comparative Law, 630: "Nothing had happened if the for m was absent becaus e only by means of for m were the public, religious requirements of certainty and society f ulfilled. For the s ame r eason, just as not hing had happened in law, not hing had happened i n f act. "

"J henng, Gei st I I , p. 492.

l™ Wilhelm Ebel, Recht und Form (1975), pp. 13 sq.; Wieacker, Vom romischen Recht, p. 76;

idem, RR, pp. 320 s qq.

Stipulatio 85 obligations. This agreement, as far as all the more important transactions were concerned, would as a matter of course be recorded, but such a document served an evidentiary purpose only. Thus, with the increase in the use of writing¹⁰¹ we find a shift from "effective form" to "protective form".¹⁰² The documentation merely accompanied the transaction and did no longer in itself represent and embody it;

where it was made mandatory, it served to promote specific policy considerations: certainty of the law, facilitation of tax enforcement, etc.

As far as the stipulation was concerned, however, the effective and protective functions in post-classical law became somewhat confused.

As we have seen, the oral formality was gradually superseded by the drafting of an instrument. When this happened, under the influence of Hellenistic practice and tradition,¹⁰³ one of the characteristics of the question-and-answer ritual, namely its obligatory effect, passed to the instrument. This is where the roots of the modern law of negotiable instruments are to be found.¹⁰⁴ But as, on the other hand, no sharp distinction was drawn between constitutive and simply evidentiary documents, the original idea of the written document merely providing evidence for the (oral) conclusion of a stipulation was never entirely lost.

(c) Formal requirements in modern contract law

Modern legal systems still know the written record (in its many variants ranging from simple writing to a document attested by an independent public official)¹⁰⁵ as a formal requirement, though only for specific transactions and as an exception to the general rule that all formless agreements are enforceable.¹⁰⁶ Often, certain formalities have to be observed with regard to the contract of sale of land,¹⁰⁷ (usually justified by the consideration that landed property, as a rule, is the most important of the seller's assets).¹⁰⁸ Contracts of guarantee are another typical example,¹⁰⁹ it being assumed that the dangers inherent

101 Cf. e.g. Jolowicz/Nicholas, pp. 414 sqq. ^W2 Kaser, RPr I I , pp. 73 sqq.

103 Kaser, RPr I I , pp. 76 sq., 376 sq.

104 Cf. Heinrich Brunner, Zur Rechtsgeschichte der romischen und germanischen Urkunde (1880), pp. 44 sqq., 86 sqq.; H.-A. Schultze von Lasaulx, Beitrage zur Geschichte des Wertpapierrechts (1931), pp. 25 sqq.

1ІЪ The notary in Germany is entrusted with the recording oflegal transactions; there is no comparable official in English law.

10 Cf. the comparative analysis by Zweigert/Kotz/Weir, pp. 53 sqq.

107 Cf. § 313 BGB; s. 40 Law of Property Act (1925, England); Alienation of Land Act, 68/1981 (South Africa); for a thorough comparative discussion, see Bernd von Hoffmann, Das Recht des Grundstuckskaufs (1982), pp. I l l sqq.

1UK Questioned by Zweigert/Kotz/Weir, p. 51 (". . . [this consideration] gives immovable property a special status not justified by modern conditions, but it is in any case unavoidable to require some degree of formality for transactions in land since otherwise there would be no clear basis for making entries in the Land Register"). Cf. also von Hoffmann, op. cit., note 107, pp. 4 sqq.

109 S 766 BGB; Statute of Frauds.

86 The Law of Obligations in standing surety are not realized by many; promises of gift can be mentioned as a third¹¹⁰—here it would otherwise often be difficult to determine whether a specific declaration was meant to be taken seriously. Sometimes the legislator subjects new types of legal transactions to a statutory form: one may think of § 2 AGBG¹¹¹ and § 1a AbzG¹¹² which have been introduced in the interest of consumer protection. Still, the general trend is towards informality, at least as far as the traditional core areas of private law are concerned. "lus vigilantibus scriptum" was the call of 19th-century liberalism, in the spirit of which the excessive formal requirements enacted under the patronizing and paternalistic aegis of enlightened absolutism¹¹³ were shaken off: people should normally be able to look after their interests themselves and should not have to be tied to the apron strings of statutory formalities. But even where specific forms are still required, a tendency is often observable in the practice of the courts to water down such rules.¹¹⁴ They have all been introduced in order to achieve certain legislative purposes: to facilitate proof of the transaction,¹¹⁵ to give an opportunity for thoughtful consideration and thus to prevent rash and precipitate declarations, or—in the case of notarial authenti-cation— to provide for legal consultation.¹¹⁶ It is, of course, perfectly possible that, in an individual case, these aims could have been realized in other ways, even though the formal requirements were not met by the parties: anxious consideration of all the risks involved may well have preceded the oral promise to stand surety; the oral promise to sell a piece of land ma y ha ve been given by a professor of propert y law (who, one would assume, hardly needed legal advice); the

110 § 518 BGB, art. 931 code civil.

111 Cf. supra, note 6.

112 Writing required in the case of instalment sales (so that the purchaser's attention is drawn to the financing charges).

113 Cf., tor example, as to the provisions of the PrALR, the comment by Jhering, deist II, PP- 483 sq.

"English Judges have done their best to restrict the area of application of the Statute of Frauds, helped in their tortuous construction by the remarkable opacity of the statutory text": Zweigert/Kotz/Weir, p. 46. In France the courts have watered down art. 1341 code civil by means of a widely construed doctrine of "commencement de preuve par ecrit":

testimony ot witnesses is admitted, whenever the leading of evidence can at least be started off with a written document. For the attitude of the German courts, see n. 119.

113 This was the reason for the enactment of the Statute of Frauds: "For the prevention of many fraudulent Practices which are commonly endeavoured to be upheld by Perjury and Subornation of Perjury", i.e. fraudulent plaintiffs bringing claims on non-existent contracts;

the background is sketched by Simpson, History, pp. 599 sq.; cf. further esp. Ernst Rabel,

"The Statute of Frauds and Comparative Legal riistory", (1947) 63 LQR 174 sqq. An amusing example of the evidentiary function of form is related by Paul Vinogradoff, Outlines of Historical Jurisprudence, vol, I (1920), p. 364: in early Bavaria and Alemannia transfers of land had to be performed in the presence of a certain number of" small boys who, after attending the ceremony, were treated to a box on the ear in order that they might keep a vivid remembrance of what had happened. Without such a box, the transfer was void.

116 Cf. e.g. Karl Heldnch, "Die Form des Vertrages", (1941) 147 Archiv fur die civilistische Praxis 91 sqq.; Lon L. Fuller, "Consideration and Form". (1941) 41 Columbia LR 799 sqq.

(who adds what he refers to as the "channeling function").

Stipulatio 87 testator might have made his intention to institute his niece as heir absolutely clear.¹¹⁷ The sanction of invalidity therefore seems to overshoot the mark: it is not demanded by the policy underlying the rules requiring formality of the act. Strict and uncompromising application of the law under these circumstances is often denounced as

"formalistic".¹¹⁸ Equitable inroads have therefore from time to time been made into the domain of statutory forms. One of the most notable instances has been the willingness of the German Federal Supreme Court to enforce contracts for the sale of land, which lack the form prescribed in § 313 BGB, if the basic principle of good faith so demands: this, in the view of the court, is the case if the result would otherwise be "plainly intolerable" (so: and not only "hard") for the party relying on the validity of the transaction.¹¹⁹ Such tendencies, however, are of a questionable nature. Ours is an age of formlessness.

We like to focus our attention on the individual case and therefore tend to overemphasize the disadvantages of form. Indeed, it is indisputable that form not only entails a certain amount of inconvenience; it is also dangerous, in that a small flaw can have grave, harsh and unexpected consequences.

(d) Formalism or flexibility?

The advantages of form, on the other hand, are less noticeable, because they are of a negative nature.¹²⁰ Whenever a transaction is held invalid due to a formal lapsus, one's sense of equity is incensed;¹²¹ it is hardly ever emphasized, however, how many rash, ill-conceived and

17 The law of (testate) succession is, of course, one of the main battlefields with regard to this problem. See, for instance, for Germany, the classic monograph by Fritz von Hippel, Formalismus und Rechtsdogmatik (1935); for a recent comparative survey Fassberg, (1983) 31 American Journal of Comparative Law 627 sqq.; and for South Africa, see Ellison Kahn, "The Will that Won't", in: Huldigingsbundel Paul van Warmelo (1984), pp. 128 sqq.

11R On formal and formalistic reasoning in contract law, see P.S. Atiyah, "Form and Substance in Legal Reasoning; the Case of Contract", in: The Legal Mind, Essays for Tony Honore (1986), pp. 19 sqq.

9 The line of the Federal Supreme Court has varied; cf. the analysis by Joachim Gernhuber, "Formnichtigkeit und Treu und Glauben", in: Festschrift fur Walter Schmidt' Rimpler (1957), pp. 151 sqq.; Ludwig Hasemeyer, Die gesetzliche Form der Rechtsgeschafte (1971), pp.

36 sqq.

120 On the advantages and disadvantages of form, see Jhering, Geist II, pp. 47U sqq.; on for m and substance in legal reasoning cf. Atiyah, Essays Honore, pp. 19 sqq., 33 sqq.

121 A frontal attack on the for ma] requirements for wills has been launched by Gerhard Kegel, "Die lachenden Doppelerben", in: Festschrift ?ir Werner Flume (1978), vol. I, pp. 545 sqq. In case of a failure of a will as a result of the testator's lawyer's negligence, the intended benefici ary, accor ding to Kegel, may take dir ectly under the will (and thus dethr one the intestate heir). The Federal Supreme Court, on the other hand, has adopted the view that the intended beneficiary may claim damages from the negligent lawyer (as a result of which we

121 A frontal attack on the for ma] requirements for wills has been launched by Gerhard Kegel, "Die lachenden Doppelerben", in: Festschrift ?ir Werner Flume (1978), vol. I, pp. 545 sqq. In case of a failure of a will as a result of the testator's lawyer's negligence, the intended benefici ary, accor ding to Kegel, may take dir ectly under the will (and thus dethr one the intestate heir). The Federal Supreme Court, on the other hand, has adopted the view that the intended beneficiary may claim damages from the negligent lawyer (as a result of which we