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

Abstract

Successful reform of African customary law is dependent on an understanding of the true nature of its historical antecedents. Ancient Roman law with its extreme formalism, ritual and symbolism remains a useful point of reference to elucidate ancient African customary law which was characteristically preliterate. The prevailing perception is that by analogy with the Roman concept, customary law knows only real contracts, and that liability accordingly ensues only where a party has in fact partially or completely fulfilled his or her obligation. The validity of this assumption is tested and of existing interpretations of other selected aspects of African customary law of contract by way of a comparative analysis with the stipulatio of ancient Roman law. The analysis is primed against the backdrop of orality and the focus is on the relationship between words, intent and contractual liability; concretisation of verbal communication and outward ritual and the role of fides.