Definition
In Roman and civil law, a constitutum is an informal agreement — made without stipulation or formal ceremony — to pay a debt that already exists. The debt may be the promisor's own obligation or that of a third party for whom the promisor acts as surety. Because the debt must be pre-existing, the constitutum is not a mechanism for creating new obligations; it is a commitment to honor ones already in existence.
The associated procedural remedy was the actio de pecunia constituta, an action available to the creditor against a party who made such a promise and then failed to perform. This action lay in the praetorian courts and was recognized as enforceable independently of the formal requirements governing stipulationes.
Common Confusion
Constitutum is sometimes confused with stipulatio, the more familiar Roman law instrument for creating enforceable promises. The key distinction is that a stipulatio could create new obligations and required a formal question-and-answer ceremony between the parties; a constitutum required neither formality nor the creation of a new debt — it presupposed an existing one. The constitutum also differs from a fideiussio (guarantee) in that the constitutum's binding force rested on the praetorian edict rather than the formal civil law of obligations.
Why It Matters in Research
Constitutum appears primarily in sources dealing with Roman law and its reception into civil law jurisdictions. Researchers working in Louisiana, Quebec, or comparative private law contexts may encounter the term in discussions of informal suretyship, debt acknowledgment, or the historical roots of promise-to-pay doctrines. In common law research, constitutum is most likely to surface in historical treatises exploring the antecedents of assumpsit or the law of guaranty, where legal historians trace informal debt-payment agreements across Roman, canon, and early common law traditions.
The truncated passage in Black's 2nd Edition — citing Jones, 79 Va. 642 — suggests the term appeared in American case law, likely in a context involving civil law authority or the interpretation of a debt-acknowledgment instrument. Researchers should verify that citation directly; the 2nd Edition text as preserved is incomplete, and the surrounding legal question is not recoverable from the fragment alone.
Because constitutum is a term of art from the Digest tradition (Digest 13.5), researchers using historical sources should be alert to variations in spelling and translation. Latin legal compendia and Heineccius's Elementa Juris Civilis render the term and its action differently across editions, and secondary sources from the 17th–19th centuries may use constitutum de pecunia or pactum praetorium as near-equivalents without clearly distinguishing them.
Historical Dictionary Support
The four source dictionaries agree on core substance: constitutum is a civil law promise to pay a pre-existing debt, binding without formal stipulation, and covering both the promisor's own debt and third-party debts assumed by the promisor as surety.
Burrill offers the most technically precise account. He identifies the constitutum as a pactum praetorium — enforceable not by the civil law of obligations but by praetorian action — and cites the Digest (13.5) and Heineccius (Elementa Juris Civilis, lib. 4, tit. 6, § 1158) directly. This is the most useful entry for researchers needing to trace the term to primary Roman sources.
Rapalje & Lawrence give a compressed but accurate summary, useful for quick orientation. Black's (both editions) add the doctrinal distinction from stipulatio — that the constitutum must be for an existing debt — which the other sources imply but do not state as crisply. Black's also references Du Cange's Glossarium, signaling the term's presence in medieval Latin usage beyond classical Roman law, a point the other dictionaries do not pursue.
None of the historical entries address the term's reception in American or mixed civil law jurisdictions, which limits their usefulness for domestic research without supplementation.
Jurisdictional Note
Constitutum is not a recognized term of art in American common law states. It is relevant primarily to civil law jurisdictions and to comparative or historical legal scholarship. Researchers working in Louisiana law may find the concept informative as background to civilian obligations doctrine, though Louisiana's codified law does not use the term directly.