Foedus and Sponsio

Abstract

The legal problem is easily posed. Gaius, in iii, 92–4, records that the making of an agreement by the use of the word spondeo, was confined to Roman citizens. The agreement which resulted from the use of the word, namely verborum obligatio or stipulatio, was apparently sanctioned by the Twelve Tables and may thus be regarded as forming part of the earliest Roman legal system. But Gaius goes on to record that his sources allowed one case when a foreigner might use the word spondeo, in the course of negotiations between a Roman general (for Gaius he was the Emperor) and a foreign princeps. Were Gaius' sources right? If they were, it is permissible to speculate on what lay behind the two usages. The conclusion of A. Magdelain is that the oral contract undertaken by the use of the word spondeo was religious in origin, that before the Twelve Tables it was backed up by an oath and that violation of this oath made a man sacer, effectively an outlaw who could be killed with impunity. Magdelain's thesis depends on accepting the premise that Livy's account of the disaster of the Caudine Forks, which involves a sponsio between a Roman and a non-Roman, is substantially true. V. Bellini, starting from the same premise, argues that a sponsio between a Roman commander and a foreign commander originally bound the Roman people and only gradually became subject to ratification at Rome.