I I would like to begin with stipulatw. In societies which operate without currency, or where money is rarely used, a law of contract emerges only with great difficulty. The reason is not, as has been suggested, that custom dictates what is done. The truth, 1 belie\ e, is the contrary^ Contracts do not arise because the society works on the basis of mutual dependence. 1 wish to clear a field, and need help to remo\ e boulders, ^bu help me with the task. A\ hat are you to receiye in return.' I do not know; and you do not know. In time there may be something I ought to do for you. Or perhaps not for you but for a relatixe or another member of the community. Equalin' of services is not measured, but the consistent helper with skill is more honored. I'he intertwined relationships of help are too v ague for a law of contract to arise. But the Romans invented their first contract as stipulatio. It was a formal, unilateral promise complete with an oath for performance. It must hav e arisen in a very specific conte.xt. I have two possibilities in mind, of which I will deal at this point with only one —the less likely. I do something for v'ou no->r, on your promise that you will do something very specific for me in the future. In reality what is in prospect is a bilateral transaction in which one party has already done his part, but he wants a determined future quidpro quo. You desperately need seed corn now. I give it to you but exact a promise that at a specified time you will allow mv' young sows to breed from your outstanding boar. This formal promise is V ital to me because pigs are a v aluable commodity, and others will beseech you for the serv ices of your boar, d'here are no courts to enforce the promise so what is the point of my demand.' Obv iously it is to make likely that yt^u will keep your side of the bargain. In 4 I base my belief on personal observation fromremote parts of Scotland: see, e.g. Alan Watson, 'Artificiality, Reality and Roman Contract Law' in Calum Carmichael ed.. Essays on Law and Religion (Berkeley, 1993), pp. Sjff. 156
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