ORALITY IN THE LAW OF CONTRACT: MANIFESTATION AND PROOF OF INTENT IN ANCIENT AFRICAN AND ROMAN SOCIETIES
ORALITY IN THE LAW OF CONTRACT: MANIFESTATION AND PROOF OF INTENT IN ANCIENT AFRICAN AND ROMAN SOCIETIES

Summary/Abstract: There are many intersections in ancient Roman and African law and a superficial analysis of orality in the Roman law of contract provides insights that one could usefully employ in understanding the African law of contract. In Roman law, contracts could be constituted by words only but to incur liability the words had to be concretised by an “outward ritual”. In African law purely verbal agreements did not give rise to legal liability. Transfer of property, related or unrelated to performance in terms of the contract gave rise to liability and in that sense contracts in African law differed from real contracts in Roman law. The prevalence and endurance of the stipulatio in early Roman law have been ascribed to the importance of the Roman virtue of fides. It was the non-specialised nature of African law rather than the lack of fides that explains why purely verbal contracts were unknown in African law.

• Details
• Contents