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

Gardiol J van Niekerk
BA LLB LLM LLD
Professor, Department of Jurisprudence, University of South Africa

OPSOMMING
Oraliteit in Afrika gewoonteregtelike- en romeinse kontraktereg: 'n Vergelykende beskouing
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 preliterer van aard was. Die bestaande persepsie is dat Afrika gewoontreg, na analogie van die Romeinse reg, slegs reele 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.

1Introduction
African customary law is frequently scrutinised against the yardstick of the Constitution of the Republic of South Africa, 1996, with a view to its reform. But successful law reform is dependent on an understanding of the fundamental values of the legal system to be reformed and the true nature of its historical antecedents. This presents a particular problem for customary law. African culture was characteristically preliterate and there are no ancient written sources of customary law compiled by indigenous Africans themselves. The fact that existing knowledge of that law is mostly confined to interpretation by non-African jurists only exacerbates the difficulty in finding information on the true traditional African law.
The most basic information on customary law may be gleaned from non-legal materials on African culture. These include the texts of early travellers, some of which date from as early as the fifteenth century, and anthropological and ethnological writings which started appearing from the mid-nineteenth century onwards. However, it is not an easy task to extricate information on customary laws and institutions from these sources since their principal focus was not substantive law. Importantly, though, they contain information on the traditional African law untainted by foreign extrapolations and preconceived Western ideas. Moreover, they prove that already as early as the fifteenth century, Southern African societies were socially and politically well-ordered and had established legal orders.

Other sources of law are colonial reports of commissions of enquiry and parliamentary committees. Although there was initially little interest in the laws and institutions of the indigenous populations in Southern Africa, colonial administrators soon realised that African customary law was tenacious and that it had become necessary to regulate the application of that law formally. Moreover, they had insufficient knowledge of it and this prompted them, from the 1830s onwards, to compile reports on customary law and the regulation of its application. These reports provide additional information on the law, especially those which deal exclusively with substantive law. The first book on South African customary law as such, appeared in 1858. It was Colonel Maclean's Compendium of Kafir Laws and Customs which was a compilation of various sources of the laws of the amaXhosa. It took more than half a century before further works started appearing and during the 1950s the School of Oriental and African Studies embarked upon the first comprehensive project on the restatement of African customary law in former British colonies.

In view of the dearth of legal sources compiled by indigenous Africans themselves, scientific analyses of African law are generally moulded in what is accepted as universally intelligible, or rather "Western" legal language. In turn, because there are superficial likenesses in the legal phenomena of most legal systems in the primitive and the early stages of their development, customary law has frequently been described by analogy to Roman law. Even though there is a common perception that African law has never progressed beyond a primitive stage, early Roman law remains a useful point of reference, as it, too, had many features that scholars believed to be relics of the primitive point of its development. These include the extreme formalism, ritual, symbolism and the ubiquitous magic. It is therefore not surprising that scholars have frequently turned to Roman law to elucidate customary law. This jurisprudential method unfortunately frequently led to the imposition of Roman legal rules on the traditional African law and consequently the attribution of questionable characteristic features to African legal relations and the law regulating them.

Some sixty years ago already, the Director of the School of Oriental and African Studies project on the restatement of African customary law, Professor Anthony Allott, warned that the traditional African law of contract was being re-interpreted by the western courts and was consequently rapidly being displaced by the imposed colonial law. It isindeed true that a reliance on a "non-African" framework to explain and interpret customary law threatens its continued existence and today, in South Africa only fractions of the true traditional African law form part of the official state law.

The prevailing perception is that by analogy with the Roman concept, customary law knows only real contracts, and that liability accordingly ensues only where one party has in fact partially or completely fulfilled his obligation. In this article, the objective is to test the validity of this assumption and of existing interpretations of other selected aspects of African customary law of contract by way of a comparative analysis with ancient Roman law and by retracing available historical sources. It should be borne in mind that there was no "general model of a contract" in African customary law and attempts to explain that law with reference to Roman should be approached with caution.
This analysis will be primed against the backdrop of one of the shared characteristic features of African customary and Roman law, namely the general emphasis on orality. The focus will be on the best known verbal contract in Roman law, the stipulatio, a contract which, significantly, has been referred to as a method of contracting rather than as a contract of a specific kind.

The pre-eminence of orality in African culture is a well-established fact, and understandable, given its preliterate tradition. In Roman law, though, this feature is rather unexpected, bearing in mind that it developed, from early on, in a literate culture. In the fifth century BC, already, the Twelve Tables were inscribed on tablets. However, there are conflicting views on when exactly writing was first introduced in privatelegal acts. The Twelve Tables confirms that during the fifth century BC orality still dominated in private legal acts and that legal documents were not an essential component of the legal process in early Roman law. Hence, Table VI 1 states: "When a person makes bond and conveyance, according as he specified with his tongue so shall be the law." By the end of the Roman Republic, purely verbal contracts still existed, even though by that time legal documentation was firmly established in legal practice.

2 Words, Intent and Contractual Liability
The relationship between the objective verbal utterances, the subjective intention of the parties and contractual liability in the Roman stipulatio will be considered first and then I will consider the extent to which Roman-law principles could enlighten African customary contracts.

2 1   Roman Law
In Roman law, there was an inextricable link between form and the spoken word. Legal significance was attached to a verbal contract only if the words used to reach an agreement were cast in a specific form. Accordingly, liability ensued on the contract only if the parties conformed to prescribed ritualistic formal requirements.
Until the post-classical era, Romans drew no distinction between an external and an internal component in the verbal contract, that is, between the external declarations (verba) of the parties and their internal intentions (voluntas). As a result, there was not necessarily a connection between the formal words uttered and the subjective will of the parties; the words could thus neither be regarded as a manifestation nor serve as proof of their intent. In fact, the intention of the parties in verbal contracts was of minor importance. The Romans were surprisingly indifferent to problems of evidence which were regarded as the domain of the judge, not the jurist. The contracting parties reliedprincipally on fides as security. It was only in post-classical law that the emphasis shifted to protection and that the formalities were aimed at securing proof in the event of litigation.

The formal declarations manifested intent between the parties themselves and were not intended to communicate their real intention to the outside world. Watson states that the function of these declarations was merely to show the parties themselves "that they intended to make a contract.
The formality, or the external ritual, only served as judicial proof that the contract had been concluded. It did not provide proof of the real intention of the parties, the object of the obligation, or whether one or both parties were obligated to perform in future. The law gave consequence to and enforced the actual wording of the stipulatiowithout looking into the surrounding circumstances of the promise or undertaking. The stipulatio was thus enforceable in accordance with the wording even when the words did not reflect the intention of the promissor or had no connection with reality.
In 66 BC, the introduction of the exceptio doli and then the exceptio metus causa enabled the judge to start taking cognisance, to a limited extent, of the surrounding circumstances in which the contract was concluded and so to contextualise it. That rendered the reason for its conclusion more relevant. Nevertheless, it still did not alter the fact that in essence the law gave consequence to the formal words rather than to the will of the parties.

2 2  African Customary Law
It is generally accepted (in the literature) that contractual negotiations in African customary law were informal and that there was no outward ritual necessary to create liability. In accordance with Africa's oral tradition, agreements were always entered into verbally, but unlike Roman law words did not have to be moulded in a specific form. Importantly though, a verbal agreement was not sufficient to create liability. This is illustrated by the Tswana maxim that "yesterday's word does not slaughter an ox", and the Fanti saying that "nobody buys the footprints of a bullock". It is not unexpected that this particular feature of African customary law of contract gave rise to the perception that that law knew only real contracts (Roman-law contractus re) and that a contract could be constituted only by an agreement andthe transfer of a thing.

It is indeed true that the transfer of property was crucial in legal transactions. However, historical sources confirm that in contract the physical activity that transformed the parties' verbal communication into a concrete experience did not necessarily have to relate to the agreement. Concretisation of the words (the intention of the parties) could take the form of performance or part performance in terms of the agreement, or the transfer of property unrelated to the performance in terms of the agreement, such as the making of a gift. Thus Grevenbroek, a seventeenth-century traveller, reported that the "Hottentots" who traded cattle with the merchants of the Cape of Good Hope did not consider themselves contractually bound unless an exchange of gifts had taken place. Likewise, among the Fanti, the handing over of trama (earnest) was essential to "bind the contract" and a merchant did not regard the contract as binding unless the tramahad been transferred.

Towards the end of the seventeenth century, Willem Bosman, a trader in the service of the Dutch West India Company, wrote about the Dutch ivory trade on the Coast of Guinea:
As great Lovers of Brandy as they are, they will not yet, when they first come on Board and are ask'd to Drink, touch a Drop before they have received a Present. And if we should happen to stay too long before we give them any thing, they will boldly ask us if we imagine that they will Drink for nothing ... and he that intends to Trade here, must humour them herein, or he shall not get one Tooth on Board. Thus the Merchant which would deal here, ought to be very well Armed with Job's Weapon, without which nothing is to be done.

Further verification that the transfer of property was not necessarily related to performance in terms of the agreement, may be found in two letters, written in the late nineteenth century in Setswana to a Tswana News Paper, Mahoco a Becwana, published during the years 1883-1 896 by the London Missionary Society. In view of the scarcity of early written sources in any African vernacular, by indigenous Africans, these letters are indeed rare. What contributes to their value is that they do not contain second-hand interpretations of cultural information by non-Africans, but the narratives of Africans themselves. From 1883, for eight years, letters were published regarding the function of the transfer of bridewealth (bogadi). In one of these letters, a certain Baruni Makutle wrote: "Anything that is done formally is done with a cow. That is why when we confirm a marriage, we take cattle" and "[i]t is said that bogadi should be paid to formalize the marriage". In addition, Montshiwa Tawana, Paramount Chief of the Tshidi Barolong tribe from 1 884 to 1896, wrote that the transfer of bridewealth "establishes and confirms marriage" and "we use it as proof [of the marriage]".
Today the practice of handing over gifts in marital negotiations still exists and betrothal or the agreement to transfer marital guardianship over a woman to the family of the prospective husband is concretised when the boy's family offers a gift to the girl's family to ratify the verbalagreement. Negotiations for the transfer of marriage goods are protracted and when the families have reached an agreement, an animal is slaughtered to confirm the verbal agreement. This animal does not form part of the marriage goods which have to be handed over. 

Empirical researchers have documented also other instances where property is transferred independent of the performance due in terms of the agreement. Among the Tswana, for example, it is customary for a person to invite people to assist him in doing a specific task. This verbal agreement is validated by the slaughtering of an animal which is divided among those who agreed to do the work. The gift of the meat does not form part of the contract and is not regarded as payment for the services to be rendered.
It is not surprising that Schapera, who had an exceptional knowledge and profound understanding of African customary law and culture, reported for the Tswana of Botswana that executory contracts created legal liability. As to be expected, this statement was not received positively among scholars, like Epstein and Gluckman who dismissed his view as an incorrect interpretation of Tswana law.

Based on historical sources, also, Sarbah reported that executory contracts were valid. He reported that for a valid sale of land, it was required that trama be paid and that "[v]aluable consideration, that is gold, money, or chattel, [be] paid, given, or promised" (my emphasis).

3 Concretisation of Words
From the above it is apparent that words or verbal communication per se did not create contractual liability in either Roman or African law, but that the words had to be concretised. However, the way in which this occurred differed.

3 1   Roman Law
The emphasis on orality in Roman law did not reduce the significance of formalism. In fact, as indicated, there was a fixed connection between words and form. The most distinguishable feature of early Roman law was what Schulz referred to as "actional formalism", meaning that all legal acts had a specific form. Thus, in the stipulatio not the words but the form or external ritual created the legal bond and liability did not flow from the parties' agreement but rather from the exchange of the prescribed formal phrases.
The "outward ritual" of the stipulatio entailed that the communication had to be in the form of oral  questions and answers inter praesentes; that there had to be exact correspondence between question and answer; and that unitas actus was required, that is, the answer had to follow immediately after the question.
It was ritualistic formalism, then, not writing, that served as the concretisation of the spoken word in the stipulatio During the pre-classical period of Roman law, written documentation was not regarded as a legal formality. The most obvious reasons for this phenomenon were that the physical presence of the parties was regarded as aguarantee against misunderstanding and as enhancing clarity; the widespread and general illiteracy, the prevailing methods of writing, and time constraints. The predominant opinion among scholars is that although it was usual to reduce the oral agreement to writing in classical law, this was not a requirement for a valid contract but was purely for evidentiary purposes.

There is no agreement on precisely when the written stipulatio replaced the oral one. Some scholars are of the opinion that the time could be fixed in the post-classical era, with Emperor Leo's rescript of 472 which removed the requirement of the formal words;  others hold that the rescript abolished only the use of specific formal words and not the oral contract itself.

Interestingly, Meyer shows that writing on tabulae was part of the stipulatio from very early on. Although Roman jurists never explicitly mentioned writing as a prerequisite for, or part of, the stipulatio, according to her one should nevertheless bear in mind that "their analytical world left much out". This is illustrated by the fact that Gaius, for example, never mentioned that there must be a continuus or unitas actus for a valid stipulation. Meyer further maintains that Gaius never claimed his assessment to be a complete description of the stipulatio and that it was rather a description of its "core nature"; that his description lends itself to speculation; and that it certainly does not prove conclusively that the stipulatio was oral rather than written. 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 a reed.
Diosdi, too, is of the opinion that that the predominance of orality had not endured that long and that already during classical times the speaking of formal words was no longer necessary where there was a written document in place. He claims that the Roman jurists "were not interested in whether the parties had recited the stipulatio contained in the document" and concludes that the polemic is merely a topic of modern scholarly debate.

3 2  African Law
Although there were no formalities as regards the actual communication of the intentions of the parties and although no form or ceremony was required for a contract to be regarded as valid, contracts in African law were nonetheless not completely without form. There were certain ritualistic behavioural and linguistic requirements that had to be observed, some of which correspond with the outward ritual of Roman law. Thus, both parties had to be present and actual words had to be spoken.
Unlike the position regarding the stipulatio described above, consensus, or the subjective meeting of the parties' minds, played an important role in customary law of contract and agreement was reached by an extended process of deliberation between the contracting parties and between the parties and members of their respective families. The physical activity that accompanied the verbal agreement was the manifestation that agreement had subjectively been reached.

In Tswana law, this process is described as "go tshitsinya", which literally means "to introduce". Contracting parties had to be present when consensuswas reached. Further, the object of the contract had to be physically pointed out and described. Because the whole process of reaching consensus and concluding a contract was concretised, it was much easier to determine the real will of the parties. In fact, in an interview, a panel of experts for the Tswana was puzzled when the idea was put to them that one contracting party could make a mistake aboutthe identity of the other party or about the identity of the object of the contract.
In contrast to the Roman stipulatio, where abstract form completely overshadowed the subjective expectations of the parties, contracts in African law were posited in reality. The parties retained their specific identities defined by their membership of specific family groups. The object of the contract never became a "colorless commodity" and the intention of the parties remained of paramount importance.

The fact that there were specific conventions as regards behaviour and taboo further confirms that there were ritualistic boundaries in the verbal agreement. An integrated relationship existed between language, magic and religion in African culture. Language was the oral expression of African cultural life and played an important role in social and legal relations. The various language taboos illustrate the close affinity between language and the superhuman. Cattle, for example, were regarded as an important form of legal tender and a complex cattle terminology existed. Terms employed to refer to cattle differed, depending on whether they were used in a legal, religious or kinship context. Thus, where the family of a young man approached a girl's family to discuss a possible betrothal, they first offered her family the gift of an animal which, in that context, was referred to as vula'mlomo or "opening the mouth". Animals were distinctively identified in transactions, using established, refined and complex linguistic colour-pattern terminology as well as personal names.
In the early twentieth century, in a case heard by the Eastern Districts Local Division of the High Court, the Judge observed:

The subject-matter of the transaction being cattle, the defendant pointed out to the plaintiff certain five beasts easily identified, especially among Kaffirs, by their colour, horns, formation and other marks, and the plaintiff from that day to this has had no trouble in recognising which cattle were so pointed out to him as the lobolo which he accepted; and indeed there is no plea or contention on the defendant's part that [the] plaintiff is claiming cattle other than those so pointed out to him.
We therefore come down to this: Is the form of delivery adopted to be void in law, because physical delivery was not resorted to, or because, while symbolic delivery was intended, the cattle were not separated from the rest of the herd,and the defendant did not say at each inspection, "I gave you this one." It sounds rather like the echo of a Roman stipulation if it be necessary.
Also kinship terminology was complex and differed among the ethnic groups. Among the Nguni tribes, for example, parents-in-law and children-in-law had to avoid using words phonetically resembling each other's names. The restrictions on the use of certain words remind of the limitation in Roman law on the use of spondeo to Roman citizens.

4 Fides
The prevalence and endurance of verbal contracts in early Roman law have been attributed to the importance of the Roman virtue of fides. This immediately begs the question whether the absence of purely verbal contracts in African customary law was related to the possible absence of fides i n African culture.

4 1   Roman Law
Literature on the topic affirms that fides which in Roman culture implied trust and trustworthiness was an elemental postulate of Roman religious, socio-political and legal life. For Romans it was the most sacred thing in life. It formed the foundation of the binding effect of obligations, not only in the iusgentium, but also in the ius civile. Everybody, irrespective of nationality, was expected to observe the duty to keep his or her world.
The centrality of fidesin Roman life was not an attribute conceived of by modern Romanists. Fides is a recurring theme in the works of Cicero, and it is referred to, among others, by Seneca and Cornelius Nepos. The Greeks, too, commented on the extraordinary fidelity ofthe Romans. Polybius noted that bound by their pledge of fides, even Roman officials, who were ex officio most exposed to the temptation, were restrained from skimming public funds.

Cicero saw fides as "fit quod dicituf11 and associated it with justice (iustitia) and other related virtues. In fact, according to him fides formed the very foundation of justice. Within the context of the stipulatio, his proposition that fides derived from a promise made good, is certainly appropriate and underwrites its importance in legal conduct. 

Interestingly, in contrast to the opinion of modern Roman-law scholars, Seneca and Cornelius Nepos saw the formality of the stipulatio as evidence of the absence of fides. In their view informal agreements should suffice between friends and fides should eliminate the necessity for formal contracts.

4 2  African Law
It does not appear far-fetched to assume that the vital importance of the transfer of property in legal transactions and the concomitant absence of purely verbal contracts in African customary law were due to the fact that fides did not play a significant role in African culture.

However, trust between people, specifically neighbours, was certainly important in ancient Africa and it was regarded as morally reprehensible to break a promise. Gluckman, who did extensive empirical research among the Barotse of Zambia, observed that all legal relationships intheir law were based on "generosity and the utmost good faith". He reconciled the apparent conflict that, on the one hand, good faith was central in all spheres of African life and, on the other hand, that a mere agreement did not incur liability, as follows: Liability in contract was indeed only incurred when performance had taken place or property transferred, but once the obligation was created, it was governed by good faith.

The pre-eminence of trust in social and legal relationships was likewise reported for the Birwa of Botswana. Among these people, neighbours within the same settlements formed neighbourhood sets that frequently interacted with each other. These sets of people were not jurally defined units like households, but were informally dependent upon each other's co-operation for their welfare and safety. Special relationships of trust existed between such neighbours who assisted each other in various activities such as reciprocal labour exchanges, and who contracted with each other, among others, to acquire livestock. 
Bosman, too, reported at the end of the seventeenth century that if the Dutch traders abided by their ancient customs, Benin traders honoured their agreements: "[i]f we comply with them, they are very easy to deal with, and will not be wanting in anything on their Part requisite of a good Agreement."
It is therefore not the lack of fides that explains why purely verbal contracts were unknown in African law, but rather the fact that African law and culture were characteristically non-specialised. This feature manifests itself in the lack of separation, differentiation, classification, and delimitation of, amongst others, knowledge, concepts, ideas, duties and interests; and hence in a concomitant lack of abstraction. It was the emphasis on the concrete and the fact that legal reasoning was founded in sensory observation, a natural corollary of the general pre-literate condition of ancient Africa that gave rise to the need to concretise abstract principles.

5 Conclusion
There are many intersections in the law of ancient Roman and African contracts and a superficial analysis of orality in the Roman law of contract provides insights that one could usefully employ in understanding the African law of contract.

Roman society found legal certainty in formalism, which is the extreme adherence to form, because well-defined form made legal actsmemorable. In the stipulatio form was manifested in specific ritualistic words.
In African society, the emphasis on the concrete and the lack of abstraction excluded words as formality. However, specific behavioural conventions, which were not limited to delivery in terms of the contract, conferred form and created legal certainty, gave rise to liability, and were regarded as manifestations of the intention of the parties. Contrary to the traditional view, performance or part performance in terms of the contract was not the only way in which the verbal agreement could be confirmed and in that sense contracts in African law differed from real contracts in Roman law.

Historically the incorrect interpretation of African customary law by the imposition of Roman-law principles has caused much hardship for the indigenous population. The misinterpretation of the lobolo contract is but one such example. The transfer of bridewealth was regarded as performance in terms of a bilateral real contract to purchase a wife. As a result, agreements related to bridewealth were regarded as contra bonos mores. Had such agreements rather been explained by analogy with the Roman dictio dotis, a unilateral formal verbal contract to transfer marriage goods, i ndigenous Africans would have been spared the long and arduous journey to have their marriages recognised in law.