Between rhetorical and performative aspects of the stipulatio-clause in Greek legal documents of Egypt

I Introduction

The acquisition of Roman citizenship by all inhabitants of the imperium Romanum in 212 A.D. resulted in a sudden increase in the attestations of the stipulatio-clause in Greek legal documents of Egypt. Scholars have expressed various perspectives on the inclusion of this clause and its purpose, an inquiry, which is closely linked with the question whether stipulatio was actually performed by the contracting parties, as it is expressed in the wording of the clause ἐπερωτηθεὶς ὡμολόγησα and its variances throughout the papyrological documentation^[1)]. The reason why scholars waver with respect to the execution of the stipulatio is on the one hand the performative substance of the legal verbal act (interrogatio – responsio) described with vivid details particularly in legal documents of Byzantine Egypt (284–641 A.D.)^[2)], and on the other hand the degenerated nature of the clause having apparently no legal significance for the validity of the document and the transaction itself. These two factors led scholars to remain skeptical towards the actual performance of stipulatio.

Although there is no unequivocal evidence to answer this question with a high degree of certainty, I will focus on the wording of the stipulatio-clause in the papyrological documentation and rely on the rhetorical elements employed by the notaries to demonstrate that the vividness of the related clauses stems from their tendency toward legal pleonasm, repetition and semantic complementarity, rather than reflecting actual legal formalities performed by the contracting parties. For this purpose, it is foremostly required to understand the content of the supposedly performed interrogatio-responsio procedure implied in the simple formula ἐπερωτηθεὶς ὡμολόγησα and its variations. Nevertheless, due to the general tendency to meaning complementarity and repetition in the style of Byzantine documents, which aimed at alleviating the feeling of uncertainty^[3)] overwhelming notaries and contracting parties as well, I will not exclude the possibility that in some cases it was actually performed. Its execution served as the verbal dimension of the contract, complementing the textual one, that is the document. In this case the performance of stipulatio had rhetorical significance.

II The stipulatio-clause as a Floskel of legal significance

It was believed that, due to the Roman legal framework surrounding the province of Egypt and the drafting tradition of Greek legal documents, these legal instruments had to undergo a process of what might be called ‘typical romanization’. This process aimed not so much to validate them, but to facilitate their enforcement in Roman courts. However, the papyrological documentation proved that documents without stipulatio-clause were regarded as valid and adequate instruments of evidence^[4)]. Then the insertion of the clause and perhaps the demand of its actual execution^[5)] may have commenced as a precautionary measure by scribes to dispel any doubts regarding the validity of their documents in view of the new legal status quo, a scribal practice which proved vain in the aftermath owing to the general acceptance of documents without stipulatio-clause. Hence, the scribes were probably incentivized to include the clause regardless, as a standard phrase with no greater legal significance than that of a confirmatory statement about the content of the document^[6)]. As in the case of the kyria-clause it became an element of scribal tradition^[7)].

This traditional element remained part of notarial practice in the Byzantine period, but it appears to have acquired legal significance, as indicated by the Basilica. In Bas. 11,1,7,12 the text runs: Ἐὰν ἔγκειται τῷ συμφώνῳ ‘ὁ δεῖνα ἐπηρώτησε καὶ ὁ δεῖνα ὡμολόγησεν’, ἁρμόζει ἡ περὶ ἐπερωτήσεως ἀγωγή … In the scholia of this passage, we find the same concept: Sch. 25 ad Bas. 11,1,7,12 Ἔθος τοῖς ταβελλίοσιν ἐκάστῳ τέλει συμβολαίου προσγράφειν οὕτως· καὶ ἐπερωτηθεὶς ὁ δεῖνα ὡμολόγησε· … καὶ πρὸς ταῦτα ἐπερωτηθεὶς ὡμολόγησεν, ὥστε <καὶ> ἐξτιπουλάτο τίκτεσθαι δοκεῖν. Καλῶς εἶπον ἐξστιπουλάτο τίκτεσθαι …, and Sch. 26 ad Bas. 11,1,7,12 (Κυρίλλου) Ἐὰν τὸ σύνηθες τοῖς ταβελλίοσι τῷ πάκτῳ προστεθῇ, ἐπηρώτησεν ὁ δεῖνα καὶ ὡμολόγησεν ὁ δεῖνα, τίκτεται ἐξστιπουλάτο … According to the wording of the scholia it is an ἔθος and a σύνηθες of the tabelliones to add the stipulatio-clause by the end of the document. Even though it is a habit of scribal practice, the stipulatio-clause as a set phrase, a Floskel^[8)], was not devoid of legal purpose, as it is stated in the above scholia, and its addition entitles the contracting parties to proceed to an actio ex stipulatu^[9)], should a violation of the contract occur. We cannot determine with great certainty whether this legal function existed during the Roman period. However, for our inquiry the following is essential: if the clause has not been deprived of its legal significance, and the scribes, by merely adding it (Ἐὰν ἔγκειται τῷ συμφώνῳ /Ἐὰν τὸ σύνηθες τοῖς ταβελλίοσι τῷ πάκτῳ προστεθῇ) at the end of the document out of habitual practice (ἔθος), endow the transaction and the document the Roman character necessary for it to be more easily enforceable by Roman authorities, it is implied that the actual performance of stipulatio is obsolete and legally unnecessary.

Given this, we must address the following question: Why, despite the fact that stipulatio was no longer conducted by the contracting parties in the Byzantine period – or, at least, was not required – does the wording of the clause still imply that the interrogatio-responsio procedure was performed? Why was it described ‘as if’ it actually happened?

III What is in the ἐπερωτηθεὶς ὡμολόγησα formula?

There is a certain degree of variance in the Roman and Byzantine stipulatio-clause forms in the papyrological documentation^[10)]. The form ἐπερωτηθεὶς ὡμολόγησα is the most frequently attested, especially in Roman period and seems to be prima facie a descriptive clause reflecting the actual execution of stipulatio. However, its brief and elliptical formulation suggests that it functions as a set phrase. In addition, we find the following forms of increased clarity in the papyrological documentation, most of them from the Byzantine period:

περὶ δὲ τοῦ ταῦτα ὀρθῶς γεγε[νῆσ]θαι ἐπερωτηθεὶς ὡμολόγησα (BGU III 989,19–21, 20^th Dec 226, Herakleopolis).

καὶ πρὸς πάντα τὰ ἐγγεγραμμέν\α/ἐπερωτηθ(εὶς) ὡμ̣ολόγησα (P.Michael. 40,58–59, 544?, Aphrodites Kome).

καὶ ἐπὶ τούτοις ἅπασιν ἐπερωτηθέντες ὡμολογήσαμεν (P.Par. 20,36–37, 14^th July 600, Panopolis).

καὶ πρὸς πάντα τὰ ἐγγεγραμμένα ἐπερωτηθεὶς ταῦθʼ οὕτως ἔχειν δώσειν ποιεῖν φυλάττειν εἰς πέρας ἄγειν ὡμολόγησα Ꝑ (P.Vatic. Aphrod. 4, fragm. C., 13–14, 2^nd half of 6^th cent., Aphrodites Kome).

καὶ πρὸς πάντα τὰ προγεγραμμένα καὶ πρὸς ἕκαστον αὐτῶν μέρος τε καὶ κεφάλαιον ἐπερωτηθέντες ταῦθʼ οὕτως ἔχειν δώσειν ποιεῖν φυλάττειν πληροῦν ἐμμένειν ὡμολόγησαν † (P.Münch. I 7,82–85, 23 June 583, Antinoopolis).

It becomes apparent from the Byzantine versions of the stipulatio-clause that its content always refers to the entirety of the legal text and its provisions (ἐπὶ τούτοις ἅπασιν /καὶ πρὸς πάντα τα ἐγγεγραμένα /καὶ πρὸς πάντα τὰ προγεγραμμένα) with the individuals acknowledging and giving their consent (ὁμολογῶ) to each one of them (καὶ πρὸς πάντα τὰ προγεγραμμένα καὶ πρὸς ἕκαστον αὐτῶν μέρος τε καὶ κεφάλαιον). This is proved also by the long-winded infinitive version of the stipulatio-clause καὶ πρὸς πάντα τὰ ἐγγεγραμμένα ἐπερωτηθεὶς ταῦθʼ οὕτως ἔχειν δώσειν ποιεῖν φυλάττειν εἰς πέρας ἄγειν ὡμολόγησα, which specifies in a recapitulative manner the content of the supposedly performed interrogatio-responsio-process between the contracting parties. In terms of rhetoric this variation serves textually as the peroratio^[11)] of the legal document. Ταῦθʼ οὕτως ἔχειν (sc. ὁμολογῶ ταῦθ’ οὕτως ἔχειν /I agree that the things are so) is an all-encompassing expression that includes the entire content of the contract and is followed by explanatory infinitives, which emphasize specific parts of the legal document and the transaction. Δώσειν (sc. ὁμολογῶ ταῦτα δώσειν /Ι agree that I shall give them) and ποιεῖν (sc. ὁμολογῶ ταῦτα ποιεῖν /I agree that I shall do them) pertain to the fulfilment of obligations and penalties in case of violation, while φυλάττειν (sc. ὁμολογῶ ταῦτα φυλάττειν /I agree that I shall keep to them) and ἐμμένειν (sc. ὁμολογῶ τούτοις ἐμμένειν /I agree that I shall abide by them) denote abidance. Πληροῦν (sc. ὁμολογῶ ταῦτα πληροῦν/πληρώσειν /I agree that I shall fulfil them) relates more generally to the accomplishment of performances, whereas εἰς πέρας ἄγειν (sc. ὁμολογῶ ταῦτα εἰς πέρας ἄγειν /I agree that I shall bring them to an end”) encapsulates each of the afore-mentioned aspects, serving as a summarizing phrase for what the contracting parties must do to bring the legal transaction to a successful completion.

However, this formula was not a pure Greek innovation. The Latin stipulatio-clause omnia quae supra scripta sunt dari fieri praestari stipulatus A, spopondit B^[12)] had been the archetype for the Greek long-winded infinitive version of the Byzantine period and served too according to its formulation as recapitulation in Latin documents. To my knowledge there is not any ancient source attesting an even more extended version of the above-mentioned Latin stipulatio-clause similar to the long-winded variances of its Greek equivalent. Additionally, there are further infinitives used in the Greek long-winded stipulatio-clause, such as διατηρεῖν, εἰς τέλος συνελάσαι (e.g. both in P.Münch. I 13,68–70, 18^th Jan. 594, Syene), and στέργειν (e.g. in P.Princ. II 82,75–76, 27^th March 481, Lykopolis). We can assume that its further elaboration and development into a more cohesive and all-inclusive recapitulation by the Byzantine scribes resulted from their training in rhetoric^[13)].

In light of all this, if we can rely on the verbosity of Byzantine documents, which provide more detailed descriptions of the transactions, in order to deduce from the additional information therein what the scribes of the Roman period meant by the short and elliptical form ἐπερωτηθεὶς ὡμολόγησα, then the performance of stipulatio, as described in the Byzantine variations of the stipulatio-clause, would involve a question-and-answer procedure for each stipulation and part of the document describing the transaction (καὶ πρὸς πάντα τὰ προγεγραμμένα καὶ πρὸς ἕκαστον αὐτῶν μέρος τε καὶ κεφάλαιον). Thus, in a loan transaction the interrogatio-responsio would be ὁμολογεῖς ἐσχηκέναι/δεδανεῖσθαι; ὁμολογῶ· ὁμολογεῖς ἀποδοῦναι; ὁμολογῶ· ὁμολογεῖς ἐκτίσειν; ὁμολογῶ. All these questions were likely accompanied by the relevant agreed terms described in the document’s content (e. g. the date on which the debtor was required to fulfil the obligation), or they were expressed elliptically, as noted above, abstractly denoting the content of the document in a manner similar to the abstract use of infinitives in the extended version of the stipulatio-clause. In other words, while the long-winded infinitive version of the stipulatio-clause serves textually as a rhetorical means through which the main content of the document is recapitulated (peroratio), in the event that stipulatio in Roman and Byzantine period was actually performed by the contracting parties, then it played the role of a further verbal commitment that recapitulated verbally the transaction and had also confirmatory character about its content. Then in the short and elliptical form ἐπερωτηθεὶς ὡμολόγησα each crucial part of the document is implicit, that is the real act, the obligations, the penalties etc. This is the actual process implied by the variances of the stipulatio-clause throughout the papyrological documentation.

Having thus demonstrated the content of the supposed question and answer expressed through the formula ἐπερωτηθεὶς ὡμολόγησα and its variations, we cannot distinguish between stipulatio-clauses based on whether they refer to past or future acts. Even in the variation περὶ δὲ τοῦ ταῦτα ὀρθῶς γεγενῆσθαι ἐπερωτηθεὶς ὡμολόγησα the perfect tense does not refer only to past acts, e.g. the real act of the transaction, but also to future duties and penalties as well. Ταῦτα pertains to each part of the contract described in the legal document. The phrase ‘that these things have been done correctly’ is a figurative expression that denotes the satisfaction of the contracting party regarding the correct content of the contract and the document, implying each stipulation made therein. In every variation of the stipulatio-clause the supposed performance of the related verbal act includes all past, present, and future facts. Thus, I do not believe we can make a distinction between a stipulatio-clause used for past performances and one used for future performances, that is the separation between promissory and confirmatory function of the clause^[14)]. This distinction can be applied for specific stipulatio performances, but not for the stipulatio-clause itself.

Despite the fact that the wording of all the above variations implies actual performance, the verbal act of stipulatio was not conducted. Phrases such as ἐπὶ τούτοις ἅπασιν accompanying the simple formula ἐπερωτηθεὶς ὡμολόγησα are used to emphasize the all-encompassing nature of the stipulatio-clause and its reference to each aspect of the contract and the document, something that was also theoretically necessary according to Roman law. In an excerpt from Paulus’ third book on Neratius, which is transmitted in Justinian’s Digesta, we read Pluribus rebus praepositis, ita stipulatio facta est: ‘ea omnia, quae supra scripta sunt, dari?’ propius est, ut tot stipulationes, quot res sint^[15)]. Even though in this passage stipulatio specifically concerns multiple items, with the recommendation that the number of stipulationes should match the number of items, it implies that the related verbal act had to be performed for each aspect of a contract. This may be the reason why the stipulatio-clause was accompanied by expressions such as ἐπὶ τούτοις ἅπασιν.

Even the vivid infinitive version of the Byzantine stipulatio-clause cannot be a proof that the interrogatio-responsio procedure actually occurred. The simple version ἐπερωτηθεὶς ὡμολόγησα, being a set phrase with no corresponding actual performance, was exploited by the Byzantine scribes to enhance the literariness of the document by adding infinitives in asyndeton that recapitulate the main aspects of the contract and the content of the legal text. The archetype for this transformation was the Latin formula dari fieri praestari. Thus, the vividness of the infinitive version is nothing else than the outcome of the clause’s processing by the scribes and its transformation to peroratio. It is very important to note that this is not a specific rhetorical element separated from the rhetoric and style of legal documents, but it is intrinsic to the proclivity of the Byzantine scribes to legal pleonasm, repetition and meaning complementarity^[16)]. It is inherent in the drafting techniques of the notaries to alleviate their sense of uncertainty by emphasizing every detail and leaving nothing unmentioned. The stipulatio-clause being turned into peroratio served as the means by which the scribes repeated the content of the document in a recapitulative manner, complementing through the abstract meaning of the infinitives the specific import of each part of the contract and its written form. Each separate declaration in the document is encapsulated and emphasized in the stipulatio-clause through the semantic complementarity of the infinitives. Moreover, the phrase ἐπὶ τούτοις ἅπασιν, and its variations, along with the infinitive formula of the clause are two gradual steps – the latter being more specific and explanatory than the former – towards exhaustive explication and recapitulation of the document’s content, a consequence of the notaries’ verbosity. The formulas καὶ πρὸς πάντα τὰ ἐγγεγραμμένα ἐπερωτηθεὶς and καὶ πρὸς πάντα τὰ προγεγραμμένα καὶ πρὸς ἕκαστον αὐτῶν μέρος τε καὶ κεφάλαιον in the infinitive versions are variances of ἐπὶ τούτοις ἅπασιν, with their meaning being further analyzed and explicated through the infinitives.

The simple form ἐπερωτηθεὶς ὡμολόγησα was always an all-inclusive set phrase. The vividness expressed through the recapitulative infinitives and phrases such as ἐπὶ τούτοις ἅπασιν in the variations of the clause does not indicate actual performance, but is instead the result of the notaries’ verbosity. Nevertheless, in addition to the lengthy infinitive version, there are also variations with even more vivid descriptions of the supposed performance of the stipulatio.

IV Variations of the stipulatio-clause with increased vividness

There are some further Byzantine variations of the stipulatio-clause whose detailed content indicates the actual performance of the interrogatio-responsio procedure:

καὶ εἰς [τὰ προ]γεγ̣[ρα]μμ[έν]α πάντα καὶ εἰς ἕκαστον αὐτῶν ἐπερωτηθεῖσα ὑπὸ σοῦ εἰς πρόσωπόν σοι ὡμολόγησα (SB XVI 12516, 1–3, end of 5^th cent.?, Alexandria).

καὶ ἐπὶ] τούτοις ἐπερωτήσαντες ἑαυτοὺς καὶ ἀντεπερωτηθέντες [ἀλ]λήλοις παρόντες παροῦσιν κατὰ πρόσωπον ὡμολόγησαν (P.Lond. I 113–1, p. 199, 72–73, 6^th–7^th cent., Arsinoites).

The first version comes from a fragment that contains the end of a transaction regarding the half of a house, while the second one is included in a dialysis document. The vividness of the two versions describing the contracting parties being present and executing a face-to-face (εἰς πρόσωπον) interrogatio-responsio procedure points to the actual performance. However, taking a closer look at the second and more elaborate and descriptive version we find a step-by-step intensification in the emphasis given to the aspect of praesentia, a very important element in the execution of stipulatio^[17)]. The formula begins with the bilateral interrogatio ἐπερωτήσαντες ἑαυτοὺς καὶ ἀντεπερωτηθέντες [ἀλ]λήλοις, through which presence is only implied. Then the participles παρόντες παροῦσιν specify explicitly that the supposed performance of stipulatio is executed bilaterally inter praesentes. The pinnacle of emphasis on the aspect of praesentia is conveyed by the phrase κατὰ πρόσωπον^[18)]. Then, in this tripartite formula, we observe a progression from the abstract to the most specific, with the latter placing significant emphasis on the prerequisite of presence through the reference to a face-to-face interaction.

However, why would the scribes want to give emphasis to this prerequisite, if stipulatio was not actually performed? During Justinian period actual presence was not necessary. Justinian modified the law regarding the praesentia of the contracting parties ordaining that a mere reference to their presence in the document was sufficient under the condition that they were not in different localities^[19)]. So, this modification about the written form of stipulatio in legal documents may have led the notaries to elaborate in the stipulatio-clause the reference to the presence of the contracting parties, in order to confront their feeling of uncertainty and dispel any doubt about the fulfilment of this legal prerequisite. But in addition to this, if the stipulatio-clause was introduced in the Roman period not only as a legal means for the endowment of enforceability to the document, but also as a rhetorical means, particularly a captatio benevolentiae directed to the Roman judges, so that their sententia could be more favorable^[20)], then the Byzantine scribes due to their proclivity to legal pleonasm endeavored not only to show their legal knowledge, since in theory stipulatio is valid only when it is performed inter praesentes, but also to emphasize that this formality for the supposed execution of stipulatio was taken seriously into account. By giving emphasis on the aspect of presence the notary intensifies the impact of the captatio benevolentiae; he is not just adding the abstract Floskel ἐπερωτηθεὶς ὡμολόγησα. Simultaneously this vivid description of the supposedly performed stipulatio gives testimony to the fact that the contracting parties have διάθεσιν ἐπερωτώντων τε καὶ ἐπερωτωμένων, an element whose absence does not allow the ex stipulatu actio^[21)]. Following this line of argumentation, it is tempting to assert that in the case at issue, we fall victim to the rhetorical strategies and vivid language employed by notaries in their effort to give prominence to the pure Roman character of their documents^[22)]. This version of the clause is a further attestation of notaries’ proclivity to use complementary in meaning words and phrases in order to alleviate the feeling of uncertainty. Once again, even though the vividness of the clause suggests that the stipulatio must have been performed, it is, in fact, the notaries’ effort to thoroughly emphasize the prerequisite of praesentia as a crucial element in the supposed execution of this verbal contract.

There is though one more vivid version of the stipulatio-clause which we should discuss:

καὶ ἐπερωτηθεὶς εἰς | ἅπαντα ἑρμηνευθέντα μοι διὰ τῆς Αἰγυπτιακῆς διαλαλείας (l. διαλαλίας) παρὰ τοῦ ἑξῆς συμβολαιογράφο(υ) ἀρεσθέντα | μοι καθὼς τῷ ἐμῷ στόματι ἀφηγήσασθαι. ταῦθʼ οὕτως καλῶς ἔχειν δώσειν ποιεῖν φυλάττειν στέργειν ἐμμένειν | ὡμολόγησα καὶ ἀπέλυσα (P.Lond. I 77,68–71, p. 231, 610, Ta Memnoneia)^[23)].

In this variation found in the testament of Abrahamius, it is stated that the notary translated the content of the document in the Egyptian language /ἑρμηνευθέντα μοι διὰ τῆς Αἰγυπτιακῆς διαλαλείας (l. διαλαλίας). It is implied that stipulatio was performed after Abrahamius declared his consent to the Egyptian translation of the document realizing that it was consistent with his testamentary description (ἀρεσθέντα μοι καθὼς τῷ ἐμῷ στόματι ἀφηγήσασθαι). The content perplexity of this version seems to be an important indicator of stipulatio’s actual performance^[24)]. However, in P.Oxy. LXIII 4397, a settlement of claims dated in 545 A.D., there is a variation of this version, in which we observe the recitation and translation of the document being linked not with the stipulatio-clause but rather with the subscription of the contracting parties:

(in the main content): καὶ ἐπερωτηθέντες ἐφʼ ἅπασιν | κατὰ πρόσωπον ὡμολόγησαν … καὶ ἀναγνωσθέντων̣ | πάντων καὶ ἑρμηνευθέντων αὐτοῖς καὶ ἀρεσθέντων ὑπέγραψα̣ν̣ | διὰ (hand 3?) Παμουθίου (ll. 181–187)

(in the subcription): καὶ συμφων̣εῖ μοι πάντα καὶ ἕκαστον ὡς πρόκειτα̣ι̣ | καὶ ἐπερωτηθεὶς ὡμολόγησα καὶ ἀναγνωσθέντων μοι πάντων καὶ̣ | ἑρμηνευθέντων ἐγὼ ὁ αὐτὸς Ἰωσὴφ ἀλάχιστος (l. ἐλάχιστος) ᾔτησα Παμούθιον τὸν θαυμα(σιώτατον) | ὑπογράψαι ὑπὲρ ἐμοῦ ἀγραμμάτου ὄντος καὶ ἀπέλυσα. † (ll. 206–209)

While in the testament of Abrahamius ἀνάγνωσις and ἑρμηνεία are part of the stipulatio-clause, here the related participles are closely associated with the subscription. At any case, we can hardly exclude the fact that the document was recited, translated and even explained to the contracting parties who could not read and understand its content. Accordingly, this hardly deniable verbal aspect can allow us to link the participles ἀναγνωσθέντων^[25)] and ἑρμηνευθέντων with the verbal procedure of interrogatio-responsio meant in the stipulatio-clause. This linkage can be enhanced by the fact that the notaries are frequently inclined to juxtapose complementary in meaning words and formulas. The participles then may complement and explain to some extent the process of the actual performance of stipulatio carried out at least without strict verbal formalities. The juxtaposition of the ἀναγνωσθέντων-ἑρμηνευθέντων-ἀρεσθέντων formula and the ἐπερωτηθείς ὡμολόγησα of the stipulatio-clause in P.Oxy. LXIII 4397 or their combination in the testament of Abrahamius may reflect the actual recitation of each part of the document’s content in the form of interrogatio. Due to the fact that after the completion of the main content of the document, it was the appropriate phase in which the parties theoretically had to perform the stipulatio as a means of confirmation of the legal content, this practice was mingled with the recitation and translation of the legal text for those who cannot read and understand it^[26)].

However, there is an important reason to make a disjuncture between these two practices and associate the above participles with ὑπογραφή. The ὑπογραφεύς was a person subscribing in favor of those not capable of writing their signature on their own (ἀγράμματοι or βραδέως γράφοντες). He had to be a trusted person and was responsible for verifying the document’s content and explaining it to the party on whose behalf he was subscribing^[27)]. Only after the party gave his consent to the content of the document should ὑπογραφεύς subscribe. Therefore, the verbal aspect denoted by the participles is, more likely, closely related with that practice, not least because the subscription takes place right after and because of the recitation and translation of the document’s content, as the wording of the above passage explicitly states. Given that, in the case of Abrahamius’ testament the participles might have been interpolated in the stipulatio-clause due to the adjacency of these formulas^[28)].

Nevertheless, the adjacency and the combination of the stipulatio-clause with the participles denoting the practice of recitation and translation of the legal document point to their association. The stipulatio-clause having from a legal point of view the function of a confirmatory clause about the content of the document was not performed and remained generally a dead-letter. Its textual confirmatory function was substituted or supplemented by the simple verbal practice of ἀνάγνωσις and ἑρμηνεία to which the parties had to express their consent and approval about the document’s content.

However, we cannot exclude the fact that the performance may have been optional for the contracting parties in the Byzantine period, especially in the case of serious transactions. The feeling of uncertainty regarding the outcome of the legal transaction may have been the cause not only for the cohesiveness and all-inclusiveness in the style of notaries as a method of alleviating and confronting their anxiety, but also for the abidance to every theoretically required actual formality germane to the execution of the contract, even if it was not practically and legally necessary. To the extent the verbosity of the style was legally unnecessary and was used regardless, so the typical execution of stipulatio. In the same way there was meaning repetition and complementarity between terms and formulas, it is quite plausible in some cases that the stipulatio was executed to complement and repeat the document’s content as its verbal dimension; the verbal aspect of the contract supplemented the textual one. So, if the performance of the stipulatio actually occurred in some instances, it can be understood as a further method of alleviating the anxiety of both the notary and the contracting parties through a theoretically solemn framework that was provided by the interrogatio-responsio procedure. Additionally, this confirmed not only the content of the document, but also proved the serious intentions of the contracting parties about the legal deed. It served also as a rhetorical means among them to persuade each other about their decisiveness to undertake and fulfil their obligations.

V Conclusions

At first glance the intriguing vividness of the above presented variations of the Byzantine stipulatio-clause, but also the confirmative character of the supposedly performed stipulatio as verbal peroratio of each part of the contract and the document seem to be sufficient clues proving the actual performance of the related verbal act by the contracting parties after the completion of the instrument. However, in reality the liveliness of these variations is the result of the notaries’ processing the clause to alleviate the feeling of uncertainty and highlight legal aspects of the actual stipulatio that could contribute to the enhancement of the typical ‘romanization’ of the document, as a rhetorical means of captatio benevolentiae directed towards Roman authorities. We actually fall victim to the notaries’ vivid formulation of the stipulatio-clause which aims at presenting the verbal act ‘as if’ it was conducted. Nevertheless, we cannot exclude the actual but at any rate typical performance of the stipulatio as a rhetorical means that alleviated the feeling of uncertainty by serving as the verbal dimension of the contract complementing the textual one, the document. In this case, following formalities that once had great legal significance the parties prove that they consider the legal transaction with paramount seriousness.