ARTICLES

Orality in African customary- and Roman law of contract: A comparative perspective

Oraliteit in Afrika gewoonteregtelike- en romeinse kontraktereg: 'n Vergelykende beskouing

Gardiol J van Niekerk

BA LLB LLM LLD Professor, Department of Jurisprudence, University of South Africa

OPSOMMING

Suksesvolle hervorming van Afrika gewoontereg hang saam met 'n begrip van die historiese antesedente van die regstelsel. Antieke Romeinse reg met haar uiterste formalisme, rituele en simboliek bly 'n belangrike vertrekpunt om antieke gewoontereg te belig wat preliterêr van aard was. Die bestaande persepsie is dat Afrika gewoontreg, na analogie van die Romeinse reg, slegs reële kontrakte ken en dat aanspreeklikheid slegs volg op gedeeltelik of volle nakoming van verpligtinge van 'n party. Die geldigheid van herdie aanname asook bestaande interpretasies van ander geselekteerde aspekte van die kontrak in die Afrika gewoontereg word getoets by wyse van vergelyking met die stipulatio van die antieke Romeinse reg. Die analise geskied teen die agtergrond van oraliteit en die fokus is op die verhouding tussen woorde, bedoeling en kontraktuele aanspreeklikheid, konkretisering van verbale kommunikasie en seremonie en die rol van fides.

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1 This is a much expanded version of a paper presented at at the 64th Session of the Société Internationale "Fernand de Visscher" pour l'Histoire des Droits de l'Antiquité on "Communication et Publicité dans l'Antiquité: Profiles, Juridiques, Sociaux, économiques, held 2010-09-28 to 2010-10-02 in Barcelona, Spain. The paper was published in 2010 (4) Studia Iurisprudentia (http://studia.law.ubbcluj.ro). The paper is available at http://studia.law.ubbcluj.ro/articol.php?articolld=366 (accessed on 2010-10-25).
2 Examples of such works, dealing with Southern Africa, are Olfert Dapper Kaffrarie, of Lant der Hottentots (1668), Willem ten Rhyne Schediasma de Promontorio Bonae Spei (1686) and Johannes Gulielmus de Grevenbroek Gentis Africanae circa Promontorium Capitis Bona Spei Vulgo Hottentotten Nuncupatae Descriptio (1695). These works were published in 1933 with translations and annotations by the Van Riebeeck Society in Cape Town as Schapera (ed) The Early Cape Hottentots. Also of interest is Ioannis Leonis Africani De Totius Africae Descriptione, Libri IX (1556). John Mensah Sarbah Fanti Customary Laws (1897) published in London, which deals with the customary laws of the Fanti and Akan tribes of the Gold Coast, is based on the works of travellers of the fifteenth, sixteenth and seventeenth centuries. It also contains judicial decisions on customary laws. The Hakluyt Society has issued numerous works by early travellers to and in Africa (especially the West Coast) which, with careful scrutiny, yield interesting information on customary laws. See, A Description of the Coasts of East Africa and Malabar in the Beginning of the Sixteenth Century by Duarte Barbosa (1514, tr Henry E J Stanley 1 865) and The Chronicle of the Discovery and Conquest of Guinea by Gomes Eannes de Azurara (1540, tr Charles Raymond Beazley 1896); Willem Bosman A new and accurate description of the coast of Guinea, divided into the Gold, the Slave, and the Ivory Coasts (1700, tr 1705).
3 Colonel Maclean was Chief Commissioner in British Kaffraria. His Compendium consisted, among others, of papers of a certain Reverend Dugmore, initially published in 1 846 and 1847 in The Christian Watchman; a letter from Maclean; notes of Warner, the Tambookie agent in British Kaffraria in 1856; and notes of Brownlee, Commissioner of the Gaika People. Brownlee was the Secretary of Native Affairs at the Cape and was actively involved in "Native Administration". He was later appointed as Gaika Commissioner in the Transkeian Territories. He spoke fluent Xhosa and authored various books and papers on African laws and customs, among others Reminiscences of Kafir Life and History and Other Papers (1896). His "Laws relative to religion and other customs" were taken up in Maclean's Compendium.
4 Seymour's Native Law and Custom was published by Juta & Co in Cape Town in 1911.
5 Menski Comparative Law in a Global Context (2006) 466.
6 See Diósdi Contract in Roman Law. From the Twelve Tables to the Glossators (1981) 42-43; Wasserstein & Fassberg "Form and formalism: A case study" 1983 American Journal of Comparative Law627 627-630;         [ Links ] Tuori "The magic of mancipatio" 2008 RIDA 499ff, Kaser Das römische Privatrecht Vol 1 (1971) 39. MacCormack "Formalism, symbolism and magic in early Roman law" 1969 Tijdschrift voor Rechtgeschiedenis 439 445-446, referring to the anthropological works of Gluckman and Malinowski, avers that the lack of formalism in African law and culture illustrates its primitivity: "[I]ndeed ... the more primitive the legal system the less likely it is to be formalistic."
7 See Allott's "Introduction" which appears in all the African Law Project's publications in the Restatement of African Law Series. Examples of publications in this Series are: Cotran Kenya: The Law of Marriage and Divorce (1968) Vol I (Restatement of African Law: 1); Cotran Kenya II: The Law of Succession (1969) (Restatement of African Law: 2); Ibik Malawi I: The Law of Marriage and Divorce (1970) (Restatement of African Law: 3); Ibik Malawi II: The Law of Land, Succession, Movable Property, Agreements and Civil Wrongs (1971) (Restatement of African Law: 4).
8 Gluckman The Ideas in Barotse Jurisprudence (1972) 177-179 describes a case adjudicated by a traditional court: A fisherman had paid in part for a net to be manufactured. Upon completion of the net, the King's steward forced the net maker to sell the net to the King. Although the court found against the fisherman, general opinion was that had one of the "judges" not been corrupt, the decision would have been in the fisherman's favour in terms of Barotse law; see generally Gluckman 177-182. See, Prinsloo & Vorster "Elements" in Indigenous Contract in Bophuthatswana (Centre for Indigenous Law)(1990) 6-7, 10-11; Whelpton Inheemse Kontraktereg (LLD thesis 1991 UNISA) 81-83.
9 Gluckman 1 76; see generally 1 75-176.
10 The emphasis on orality was not limited to these two ancient societies; see Kaser Vol 1 39ff 230ff Kaser Das römische Privatrecht Vol 2(1975) 73 ff on the shared characteristic features of formalism and orality in ancient societies.
11 Anecdotal evidence of this contract abounds in the literature: see, eg , Plautus Bacch 880-883; Cic Rhet Her 2 13-14 and Ep Att 16 11 7; De Or 2 100; De Leg 1 14; Quintillian Inst 4.2.6. See also generally on verbal contracts: Ulpianus Inst 3 15; D 45 1; Modestinus D 49 7; Kaser Vol 1 538-543.
12 Nicholas An Introduction to Roman Law (1962) 166 193; Diósdi 41; Harrill "The influence of Roman contract law on early baptismal formulae" Papers Presented at the Thirteenth International Conference on Patristic Studies, Oxford 1999 Belgium 2001 (35) Studia Patristica 277.
13 See, eg, Kaser Vol 1 230-231; contra Schulz History of Roman Legal Science (1953) 25; Albrecht A History of Roman Literature from Livius Andronicus to Boethius (1997) 631; Meyer Legitimacy and Law in the Roman World. Tabulae in Roman Belief and Practice (2004) 36ff
14 My emphasis. Cum nexum faciet mancipiumque, uti lingua nuncupassit, ita ius esto. (Translation by the Yale Law School's Avalon Project at http:// avalon.law.yale.edu/ancient/twelve_tables.asp (accessed 2010-08-31)). See further Meyer 37-43. By the second century BC Cato provided written forms for contracts for gathering and milling olives, sales of olives and grapes, lease of land for winter pasture and sale of increase of flock. Cato de Agr 144-147 149 150; Varro (first century AD) in de re Rust 2 2 5-6, 2 3 5, 2 4 5, 2 5 10-11, for example, gives ancient formulae for the guaranteed purchase and sale of, eg, sheep, goats, swine and cattle.
15 Cicero clearly distinguishes between written and unwritten law, and specifically refers to legal documentation in mancipatio and stipulatio: Cicero adAtt12 17;16 11 7, de Orat 2 24; see too, Zimmermann The Law of Obligations. Roman Foundations of the Civilian Tradition (1990) 71.
16 Zimmermann 563-565, 622, 626.
17 Idem 70, 89, 624-625.
18 Kaser Vol 1 39f Vol 2 (n 10) 73f indicates that in certain instances something additional was required to formal words to bring about public knowledge and to serve as evidence of the intention of the parties. Thus, in the acts per aes et libramand confarreatio witnessess were required and in others, the co-operation of the magistrates. The purpose of these actions was to express the content of the obligation, not to serve as protection in case of litigation as was the case in post-classical law.
19 Watson "Artificiality, reality and Roman contract law" 1989 Tijdschrift voor Rechtsgeschiedenis 151.
20 Amos The History and Principles of the Civil Law of Rome (1883) 203 refers to it as an "outward ritual".
21 Amos 202-204; 215; 219.
22 Idem 202; De Zulueta The Institutes of Gaius Part II Commentary 151-152; Zimmermann 70 83-84; Wasserstein & Fassberg 1983 American Journal of Comparative Law 627.
23 Harrill 276f"states that validity of the legal act came from its form not from consensus. Cf, too, Amos 202, Watson 1989 Tijdschrift voor Rechtsgeschiedenis151 155-156; Kleyn "The reality of real contracts" 1995 THRHR 16 16-17. This is in line with Watson's view (at 147-148) that law is an artificial creation of legislators, judges and jurists which gives a distorted view of social reality.
24 See, eg, G 4 116a: Thus, if I have taken a stipulary promise from you of a sum of money, on the understanding that I will advance you the amount on loan, and then I do not advance it, it is undeniable that an action lies against you for the money; for you are legally liable to pay it, being bound by the stipulation; but, because it is inequitable that you should be condemned on this account, it is settled that you must be protected by an exceptio doli mali Cf De Zulueta 151; Nicholas 22 164; Thomas The Institutes of Justinian (1975) 209.
25 "Lentswe la maabane ga le thlabe kgomo."
26 Sarbah 93.
27 See Gluckman 1989 Tijdschrift voor Rechtsgeschiedenis 151 176; contra Vorster "Independent service" in Indigenous Contract in Bophuthatswana (ed Myburgh)(1990) 52-53.
28 Primo magnam tabaci portionem ... exporrigunt ... secus se non obligari tenerre contractum ... . (At first the traders display a big portion of tobacco ... otherwise the natives do not think themselves bound to the contract); and further: Tumque nostratibus e longinquo obviam eunt mercatoribus (etom schaep dicunt), opimum conferentes vervecem aliqua dictae plantae donatio fieri debet, quam talis vervecis munere compensant. ([O]n these occasions they [the Khoikhoi] come a long distance to meet our traders, bringing with them a prime wether (they call it etom schaep) - a portion of the tobacco must be given as a present, for which their return is the gift of the wether.): Grevenbroek 136 137.
29 Sarbah 86ff
30 Bosman Letter XX 404 and see further 405; at 409 he indicated that mainly wax, honey and elephant tusks were traded. Bosman was the second-highest official in service of the Dutch West India Company in Elmina, the main Dutch trading port on the West Coast of Africa for more than fourteen years. In his work A New and Accurate Description of the Coast of Guinea, Divided into the Gold, the Slave, and the Ivory Coasts, he describes, among others, the trading practices of the indigenous populations of what is today Ghana, Togo, Benin and Western-Nigeria. The practice of handing over gifts not related to performance in terms of the agreement was confirmed also by Johan Snoek, whose narrative was published as Letter XXII (487), dated 1702-01-02, an appendix to Bosman's letters. He wrote: "[after giving them their dasjeor Present, I dealt with them for the Ivory at the dearest Rate".
31 A selection of the letters written in Setswana to the editor of the news paper by literate Africans was translated into English and edited by Mgadla & Volz. It was published in 2006 in Cape Town as Words of Batswana. Letters to Mahoko a Becwana 1883-1896 Vol 37 of the Second Series of the Van Riebeeck Society.
32 Idem 145-146.
33 Idem 161.
34 In infant betrothals, the family of the baby boy gives a goat and a cow to the family of the baby girl. Church "Betrothal and marriage: Contractual aspects" in Indigenous Contract in Bophuthatswana (ed Myburgh) (1990) 84-86 interprets this custom as part performance and as a method of confirming liability to transfer the girl in marriage when she reaches a marriagable age.
35 The custom of transferring marriage goods differed among the different ethnic groups. Full performance was not always a requirement for a valid marriage: See Maclean 47-52 for a detailed description of such negotiations among the indigenous people of British Kaffraria; Vorster et al Urbanites' Perceptions of Lobolo: Mamelodi and Atteridgeville (2000) 76.
36 Vorster 52-53.
37 Schapera "Contract in Tswana law" in Ideas and Procedures in African Customary Law (ed Gluckman)(1969) 327-328.
38 Cf Gluckman 180, 182-185.
39 Sarbah 86.
40 Schulz 25-26.
41 According to Harrill 279, the oldest surviving non-legal description of the stipulatio may be found in Varro Rust 2 2 5-6.
42 For a general discussion of this ritual, see Zimmermann 72-75; Kaser Vol 1 539ff Meyer 116-117; Buckland A Textbook of Roman Law from Augustus to Justinian (1966) 434-435.
43 Gai 3 105: That a dumb man can neither stipulate or promise is obvious. The same is accepted also in the case of a deaf man, because it is necessary both that the stipulator should hear the words of the promissor and that the promissor should hear those of the stipulator.
44 Gai 3 92: "A verbal contract is formed by question and answer, thus: 'Dost thou solemnly promise that a thing shall be conveyed to me?' 'I do solemnly promise.' 'Wilt thou convey?' 'I will convey.' 'Dost thou pledge thy credit?' 'I pledge my credit.' 'Dost thou bid me trust thee as guarantor?' 'I bid thee trust me as guarantor.' 'Wilt thou perform?' 'I will perform'" The requirement of specific words - originally limited to Latin, spondere, and for Roman citizens - was relaxed in classical times when any words could be used: Buckland Textbook 434-435 contra Nicholas "The form of the stipulation in Roman law" 1953 LQR 63 65ff. There is however recent documentary evidence that slaves and foreigners could make use of the sponsio: Urbanik "Sponsio servi" 1998 Journal of Juristic Papyrology 185 185-201, quoted in Harrill 278 n 2.
45 Gai 3 136: "[A] verbal obligation cannot be formed between parties at a distance"; see also Gai 3 138. CfMeyer 255.
46 Gai 3 102.
47 Venuleius D45 1 137pr continuus actus; Modestinus D44 7 52 2; Ulpianus D46 4 8 3; Gaius D44 7 52 2; De Zulueta 153; Nicholas 1953 LQR 63 64-65; Buckland A Manual of Roman Private Law (1939) 264; cf Meyer 116-117.
48 See Zimmermann 80-82 for a discussion of the conversion of the verbal contract into a written one.
49 Kaser Das römische Zivilprozessrecht 2 ed (1996) 10-11; Metzger "Roman judges, case law, and principles of procedure" 2004 Law and History Review 264 ff Meyer 2 36-39.
50 Schulz 25-26.
51 Metzger 2004 Law and History Review 264 262ff
52 Zimmermann 79; Kaser Vol 1 540ff, Vol 2 373; MacCormack "The Oral and Written Stipulation in the Institutes" in Studies in Justinians Institutes in Memory of JAC Thomas (eds Stein & Lewis)(1983) 96ff Du Plessis "The Roman concept of lex contractus" 2006 Roman Legal Tradition 79-80. Nicholas 1953 LQR 63 77ff 233ff De Zulueta 155 observes that Cicero, as layman, was wrong to assume that stipulationes were among the res quae ex scripto aguntur written stipulationes were valid only if orally confirmed and oral stipulationes were valid irrespective of whether they had been documented; see further 156 -157.
53 Amos 202; Harrill 275 276; Buckland Manual'263; Zimmermann 71 esp n 20.
54 Nicholas 196; Nicholas 1953 LQR 63 65ff see also Thomas 209; Kleyn 1995 THRHR 16 18-19.
55 See Meyer 117; see further 116-117 and the sources quoted in nn 102-106; 253-261. Based on Roman texts, scholars have debated the possibility also of various other actions being part of the stipulatio such as the pouring of libations, offering the right hand as a symbol of the fides, a combination of these two actions and holding and breaking of a reed.
56 Contra Nicholas 1953 LQR 63 65ff, who argues that Gaius provided an exhaustive list of formal words.
57 Diósdi 52, see generally 51ff. He avers that the only requirement was that the parties be present.
58 Ibid.
59 As in Roman law, the nod of a head was not an indication of a party's intention.
60 With regard to the Fanti, see, eg, Sarbah 86; see also Bosman 404 Letter XX; On 1702-09-01, in Letter XXI (at 433), which appears as an appendix to Bosman's narrative, Dawid van Nyendael wrote that "they are very tedious in Dealing ... [it takes] generally eight to ten Days before we can agree with them for: But this is managed with so many Ceremonious Civilities, that it is impossible to be angry with them." Traditionally parties to a contract consisted of groups. However, individual property (eg clothes, ornaments, animals) has become increasingly recognised and individuals are nowadays allowed to conclude contracts with regard to such property: see Prinsloo & Vorster "Parties" in Indigenous Contract in Boputhatswana (ed Myburgh)(1990) 2122.
61 See Whelpton 8183.
62 Idem 85.
63 See Wonnell "The abstract character of contract law" 1990 Connecticut LR 437 438-441.
64 Myburgh "Language" in Anthropology for Southern Africa (ed Myburgh)(1981)140-144.
65 Gluckman 183. Poland, Hammond-Tooke & Voight The Abundant Herds. A Celebration of the Cattle of the Zulu People (2003) 34.
66 Poland, Hammond-Tooke & Voight 36-37; they point out that this intricate naming and classification has significant alliterative and lyrical qualities.
67 Xapa v Ntsoko1919 EDL 177 181.
68 The restrictions had possible religious origins in the oath before the Roman gods: Gai 3 92; Sandars The Institutes of Justinian(1903) 333; Harrill 277; De Zulueta 153: Gai 3 92 points out that the sponsio was restricted to Roman citizens but that other forms of stipulation were also available to foreigners and that other languages could even be used, as long as the parties could understand each other.
69 See among others Fromchuck The Concept of Fides in the Histories of Tacitus, (PhD thesis 1972 Bryn Mawr College, University of Michigan Ann Arbor) 1 ff, Van Zyl Justice and Equity in Cicero (1991) passim; Meyer 150ff Zimmermann 68-70; Schulz Principles of Roman Law (1936) 223ff(esp 326328 for the significance of fidesin law).
70 See Cicero in Verr2 3 3 6: fidem sanctissimam in vita quiputat.
71 See, eg, Kaser Vol 1 27, 33, 35, 39, 87 esp his references to the connection between fidesand sacral law.
72 See, eg, de Rep4 7, ad Fam16 10 2, de Offic1 7 23; in depart Orat22 78 Cicero observes: "That part of virtue displayed ... in matters of trust [is called] faith."
73 Ben 3 15(1-2).
74 Att 9 5.
75 Hist VI 56.14-15: "... whereas among the Romans those who as magistrates and legates are dealing with large sums of money maintain correct conduct just because they have pledged their faith by oath. 15. Whereas elsewhere it is a rare thing to find a man who keeps his hands off public money, and whose record is clean in this respect, among the Romans one rarely comes across a man who has been detected in such conduct ... ." Also Cicero remarked on the role of fides in affairs or relationships of trust: de part Orat 22 78: in creditis rebus fides; cf Van Zyl 97-98.
76 At 21, Meyer comments that "it was at first rare (although eventually better known) for suspicion of corruption to touch the Romans themselves".
77 de Rep4 7: Fides enim nomen ipsum mihi videtur habere, cum fit, quod igitur. (Faith seems to me to get its very name from the fact that what is promised is performed).
78 deOffic 1 7 23: fundamentum autum est iustitiae fides; Cfalso Van Zyl 123.
79 In his deOffic1 7 23 he wrote that undertakings and agreements (dictorum conventorumque) should be upheld and the resulting obligations be discharged. This applied in both public and private acts.
80 Ben 3 15(1-2): 1 Utinam nulla stipulatio emptorum venditori obligaret nec pacta conventaque impressis signis custodirentur, fides potius illa servaret. 2 Sed necessaria optimis praetulerunt et cogere fidem quam expectare malunt...
81 Att 9 5: "[H]e came to the rescue and lent her the money without interest and without any contract, considering it the greatest profit to be known as mindful and grateful, and at the same time desiring to show that it was his way to be a friend to mankind and not to their fortunes ... "
82 Cf Mahoney "Contract and neighbourly exchange among the Birwa of Botswana" 1977 J of African Law 40 at 59.
83 Gluckman 175 and generally 174-176.
84 Albeit not in the modern ethical sense: see idem180, 182-185.
85 Mahoney 40, 49-53; cfGluckman 170 ff.
86 Van Nyendael 433 Letter XXI.
87 Myburgh Papers on Indigenous Law (1985) 2ff
88 In classical law this obligation was enforceable by a condictio. It fell into disuse when Theodosius II made enforceable any informal promise of a dowry (C Th 3 13 4).
89 Sandars 333; Thomas 208.