La litterarum obligatio nella legislazione di Giustiniano e nella interpretazione degli antecessores

Abstract

Title 3.21 of Justinian’s Institutions according to the scholars is a title invented by Justinian’s commissioners, only to maintain the Gaian fourfold division of contracts, but without the literal contract existing in the 6th century AD. This paper aims to recover the meaning of this title. The literal contract, in fact, coincided in Justinian’s law with the attribution of constitutive effects of the obligation to a non stipulatory chirograph of mutuum, as a sanction against the debtor, negligent in exercising the querela and the exceptio non numeratae pecuniae. This mechanism was not invented by Justinian’s commissioners but matches to a precise template of late ancient literal contract, regulated by CTh. 2.27.4 and C. 4.21.16.1. However, having made a specific literal contract a general figure, genereted some troubles on the dogmatic level, especially with regard to the dubious existence of the agreement: Byzantine antecessores tried to find a solution to these trobules. Finally, I. 3.21 is also useful in redrawing the boundaries, which had faded in late antiquity, between literal contract, stipulatio and exceptio non numeratae pecuniae.