was one parriciilarh’ difficulc ease. .\ master might wish to free a sla\'e, vet want the sla\e to eontinue to pro\ ide him with some ser- \’ices after manumission, ddie master coidd not take a legalK’ binding promise before manumission-tliere coidd be no contract between owner and sla\e. But the slave, once freed, might simph' refuse to give the binding promise bv tbe contract sfipiilutio. 'I'he solution was for the slav e to give an oath before he was freed, and this put him under a religious obligation to renew the promise usuallv bv anotber oatb though a stipulatio was possible, d'his second oath was then a formal verbal civil law contract, tbough the oath made while a slave did not constitute a legal obligation." 'riuis, the freedman's oath creates a priv ate law obligation, and that is its purpose. It is verv secular. It is used to circumvent a private law difficultv. It must be remembered that in no other circumstances does an oath create a Koman contract or legally contribute to one. lusiunuuiumlihcrti is a good example of The Last Best Cdiance. As often, 'Lbe Last Best (diance involves illogicalitv’ that is simplv ignored. I low can a sacred oath, at a time when oaths have no secular legal effect, give rise to a secular legal obligation to make a secular contract.^" 'I'he oath also appears prominentlv in the archaic formof Roman jirocedure called Irgis and was the basis of the Icgis actio sucmmono, 'action of the law bv oath,' which is considered the oldest Roman action. We looked at some aspects of this in chapter 'This action could be brought either /;/ rcwor ui personam. It will be enough tivr us to examine the former, f'ach partv to the action claimed the object in dispute and stated that he had claimed properlv’. One then challenged the other to an oath with a penaltv on the basis that he had claimed wrongly, and the other responded in kind. Lhe penaltv 13 See, e.g., D. 40.12.44pr.; 46.4.i3pr.; cf. Buckland, Textbook, p. 458; J.A.C. Thomas, Textbook of Roman taw(Amsterdam, 1976), p. 264. 14 See, e.g., Alan Watson, The State, LawandReligion: Pagan Rome(Athens, Ga., 1992), pp. 44ff. 131
RkJQdWJsaXNoZXIy MjYyNDk=