Written Proof - Burdens of Proof - page 95

tablets, tabulae ceratae , in a documentary genre known as the chirograph .
In contrast to tabulae signatae , written testimonies signed and sealed by
seven witnesses as evidence of legally significant transactions, chirographs
were written and sealed by the parties themselves and thus enjoyed little
power to compel. They were “based on agreement, on faith, and on the
threat of an appeal to the praetor.” 10 Still, chirographs were not without
efficacy. On the one hand, parties had a significant stake in defending the
reputation attached to properly honoring their bona fides; ; on the other
hand, the writing down of agreements by the parties brought into play
the power of performance:
Physical form and special language connected individual documents with other
well-known, venerable acts performed by Romans: the wooden tabulae , along with
its customary rhythmic and formulaic language, was characteristic not only of pol-
itical acts like the creation of treaties, magisterial edicts, leges , senatusconsulta , or the
census, but also of religious acts like vows and prayers and important household
acts like the entering of accounts, the making of a will, or the sending of a curse.
These acts relied on tablets' understood capacity—as part of a protocol in which
each step had to be performed and performed correctly—to bring an act to comple-
tion and to make it perceptibly real. 11
In the Middle Ages, the material qualities of parchment enabled signifi-
cant technical innovations to chirographs. Contractual agreements were
written out in duplicate (sometimes triplicate) on a single piece of parch-
ment. Between each copy of the agreement, parties would write in capital
letters the word “chirographum” and cut across the word in a wavy line:
“each party received a copy of the agreement, authenticated by the seal of
the other party, and the cut enabled the copies to be checked against one
another.” 12 The medieval chirograph provided an elegant solution to the
problem of fairly apportioning the burden of proof : by providing each other
with an authenticated confession of the contractual terms, prior to both
execution and litigation, parties collaborated in constituting evidential
ammunition against themselves. 13
These basic principles—the freedom of private parties to contract on the
sole basis of their good faith ( consensualisme ), use of form requirements in
the production of written evidence ( formalisme ), and fair apportionment
of the burden of proof ( préconstitution de la preuve )—continue to character-
ize the French evidential regime of private contracts. 14 The Napoleonic
codification of 1803 restated the principles of the 1566 Ordonnance as
article 1341 of the Civil Code: “A written document must be established,