is rhis sale? "I he answer was fundamental importance because once an action was brought on one set of facts and failed, no other action could be brought on the same facts {litis avitcstutio was the termfor the point of no return). A plaintiff who brought an action of sale and failed because the agreement was held not to be a cc^ntract of sale irre\ ()cabl\’ lost his right of action, d'he requirement of absolute claritx' for the decision continued with the formularx' procedu¬ re. rhe important result of both the Icgis actioucs and the forniultic is the emergence of law and legal institutions with e.xtraordinarx’ sharp contours. I'or e.xample, exactly what steps were needed tt) acquire ownership, and the precise boundarx’ lines betxveen sale and hire or barter, came to be fixed. But this emergence of laxx and sharp contours came at a price, rhere could be no compromise in the decision. One had oxx nership, or one had nor. 'This xvas a contract of sale, or it xvas nor. The law diX erged fromthe social realities of hoxv people act. Each factual situation that could fit into a legal institution xvas adjudicated in terms of it, and all surrounding circumstances were excluded. A fexx exampies are sufficient. 1. The oldest Roman contract xvas the stipuLitio, an oral promise made bx’ an ansxver to an immediatelx preceding question, xx ith the promisor using the same \ erb. d'he contract xvas unilateral. Only one partx', the promisor, xvas legallx’ liable, and he xvas bound strictlx’ bx' the xvords used, .\lthough the contract dates from at least the fifth century b.c:., it xvas only in the first century b.c. that it xvas accepted that fraud or intimidation by the recipient of the promise could be relex ant. d'hus, a person xvas bound bx' a formal unilateral promise, and no surrounding circumstances could be taken into account. But xvhx’ xvould anxone exer give such a promise? d'he basic ansxver xvoLild be, xvhen it xxas matched bx' a second stipulatio gix en bx’ the 62
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