9. Obligations: Common Principles and Obligations Arising from Contracts Flashcards
(181 cards)
1
Q
Obligations in General
A
> J. 3. 13pr: “An obligation is a legal tie which binds us to the necessity of making some performance in accordance with the laws of our state.”
Legal tie = vinculum iuris.
Situations where a person has incurred a personal liability for which he is answerable at law.
Rights and duties in personam - Paul: “binds another person to give, do, or perform something for us.”
How were contracts incurred?
-contracts made by parties
-delicts committed by one against another.
Obligation: duty arose on the one incurring the obligation and the other had a right to enforce that duty by legal action (an actio in personam) - award for damages.
So for P, could be seen as an asset, a res incorporeales so G put in law of things.
2
Q
Classification of obligations
A
- Ius civile vs. ius honorarium (and later prob mid 2nd C AD - natural obligations added too).
- Unilateral and bilateral.
- Stricti iuris and bonae fidei.
>Unilateral - stricti iuris - delict.
>Bilateral - bonae fidei - contract.
3
Q
Natural Obligations
A
> Not legally enforceable agreements but could have legal consequences.
Slave and master, PF and his family.
4
Q
Source of Obligation
A
> Most important classification of obligations was according to its source (causa).
Gaius Golden Words - delict, contract, ‘special right’.
J. 3. 13. 2: 4 - contract, delict, quasi-contract, quasi-delict.
Could Q-D & Q-C equal special right? Unlikely though as G regards obligations as arising from ius civile and Q-D is a product of praetorian intervention.
5
Q
Justinian’s classification of obligations
A
> Obligations arose from 4 sources:
- Contract
- Quasi-contract
- Delict
- Quasi-delict
6
Q
Justinian’s classification of obligations - contracts
A
> Contracts = agreement enforceable at law:
1. Consensual = informal agreement leads to obligation.
2. Verbis = Obligation made by saying set words.
3. Re = obligation made through delivery of a thing, e.g. loan, deposit.
4. Litteris = originally made by HoF writing in a ledger but by J, it was simply acknowledgement of a fictitious loan.
J’s 4-fold classification is insufficient as it doesn’t take into account pacts and innominate contracts:
-doesn’t want to disturb symmetry?
-Zimmerman: J influenced by symbolism of numbers, 4 relates to secular structure of world.
7
Q
Justinian’s classification of obligations - quasi-contract
A
> Situations not strictly contractual, but liability in personam still arose.
No unifying link.
E.g. negotiorum gestio = performing services for another person without their consent.
E.g. unjust enrichment.
8
Q
Justinian’s classification of obligations - delict
A
> Obligations arising form the commission of civil wrongs.
>Delicts had penal consequences.
9
Q
Justinian’s classification of obligations - quasi-delict
A
> Untify and ununified category.
10
Q
Common Features of Roman Contracts
A
> RL of contracts = law of discrete transactions with no unifying principle except necessity of an agreement.
Early Rome, law revolved largely around a single contract - stipulatio.
But later the law of contract became the law of contracts.
Stricti iuris came from ius civile (formula of action empowered the iudex to apply his equitable discretion to the facts of the case.)
Bonae fidei introduced through ius honorarium.
Stricti iuris contracts, e.g. stipulatio, required strict observance of outward formalities of the act.
Number of common features but no ‘general principle of contract.’
11
Q
Consensus
A
> Agreement was essential especially in consensual contracts.
Genuine meeting of minds = consensus ad idem at moment contract made.
Unresolved ambiguity in the language could render the contract void however, the judge tried to resolve through interpreting the conduct and custom.
As last resort, ambiguities were construed against the party regarded as having the principal role in the formulation of the particular term in the question.
Paul, Sabinus, book 5: “vendor could have declared his will more explicitly.” D. 18. 1. 21.
Even if language was unambiguous, consensus may still be lacking due to mistake, duress or fraud.
12
Q
Mistake - general
A
> In RL, need for strict consensus led to wider role for rules on mistake than in CL.
Fatal mistakes:
1. Mistaken transaction (error in negotio)
2. Mistaken subject matter (error in corpore)
3. Mistaken identity (error in persona)
4. Mistake in quality of subject matter (error in substantia).
Mistake would make the contract void, but there could still be legal action, e.g. if buyer recovered sale price, the vendor could bring an action to recover the good.
13
Q
Mistake - mistaken transaction
A
> Error in negotio.
Parties mistaken about type of transaction intended.
E.g. one thought loan and the other sale.
14
Q
Mistake - mistaken subject matter
A
> Error in corpore.
Mistake over identity of the contract’s central object.
Contract still valid if mistake was about identity of accessory thing.
15
Q
Mistake - mistaken identity
A
> Error in persona.
Mistake over identity of other party.
Only if identity of other party was relevant to the contract.
16
Q
Mistake - mistake in quality
A
> Error in substantia.
Only post-classical.
Mistake regarding quality of subject matter of the contract.
Could only invalidate BF contract, not SI.
Had to be a fundamental mistake.
Fundamental = i.e. something sold from different category to that which the buyer presumed.
Fundamental - unclear, interpolation?
17
Q
Duress
A
> A contract was made under duress if the party had been threatened with ‘serious evil’ unless he consented to the contract.
Effect of duress varied due to contract type:
1. Stricti iuris under duress:
-was still valid in archaic and pre-classical period, but one would hope that the praetor prevents agreement’s enforcement or grants restitutio.
-late Republic, the exceptio metus (‘the defence of duress’) was allowed to prevent enforcement and an actio metus was allowed for those who suffered loss due to duress.
2. BF contract wasn’t necessarily invalid, but judge took into account.
A contract made through force, no matter the type, was invalid.
18
Q
Fraud
A
> Ulpian, Edict, book 11: “every kind of cunning, trickery or contrivance practiced in order to cheat, trick or deceive another.” D.4.3.1.2.
SI contracts = no defence nor remedy until into of exceptio doli (for defence) and actio doli in the late Republic.
If fraud induced a mistake, which would have invalidated the contract, then regarded as mistake rather than fraud.
19
Q
What turned an agreement into a contract?
A
> Contracts only arose from agreements which were actionable at law.
Actionable if there was a causa.
Cause = ground, reason, cause.
20
Q
Causa
A
> Sometimes, the form of the agreement constituted the causa, e.g. written ledger in contract litteris, or delivery of the thing in contracts re.
But what was the causa when mere agreement sufficed?
Socio-economic conditions of Rome: consensual contracts established in 3rd C BC as economic necessity to recognise causa so legally actionable.
Could also mean motive for transaction or interdependence of promises.
Possible that causa wasn’t essential to every Roman contracts and that modern scholars have exaggerated.
21
Q
Capacity
A
> Not valid unless both parties had the capacity to make the contract.
22
Q
Illegality and immorality
A
> Ulpian, Sabinus, book 42: “immoral stipulations have no validity.” D. 45.1.26.
Agreement to perform an illegal or immoral act was a nullity.
Early Emp., statutes could impose a sanction of invalidity, but before in Republic, legislation didn’t necessarily invalidate transactions made in breach of statutory provisions, e.g. lex Cincia on gifts.
Whether transactions were contra bonos mores (immoral) was determined by contemporary standards of morality.
Unclear whether religious and philosophical moral doctrines influenced this concept of good morals.
23
Q
Impossibility - general
A
> Celsus, Digest, book 8: “There is no obligation to do anything which is impossible.”
2 types:
1. Initial impossibility
2. Supervening impossibility
24
Q
Impossibility - initial impossibility
A
> Agreement was void is agreement was already impossible to perform at the time it was made:
- objective
- impossible in nature of the things for anyone not just the party involved
- could be physically or legally impossible.
25
Impossibility - supervening impossibility
>Events occurring after contract made makes agreement impossible to perform.
>Contract remained valid but wasn't legally enforceable unless he was to blame for the frustrating event or if he was in mora (in delay).
>Mora: party's failure to satisfy his obligations properly.
26
Privity
>Contract is made between stipulator and promisor.
>Can't be enforced by or against 3rd party.
>"Privity is built into form." Weir.
>Strictly enforce, but potentially some exceptions in later RL, e.g. J introduced rule that a promise to benefit/bind heirs of parties was enforceable by or against those heirs.
27
Modalities
>Clause in the contract which could delay a performance (a suspensive condition) or could undo it (resolutive condition) by making it subject to the occurrence of an uncertain future event.
>Initially only 1 modality = suspensive condition.
>Developed resolutive condition = developed in classical & Justinianic RL.
28
Common Features of Roman Contracts - list
1. Consensus (mistake, duress, fraud).
2. Causa
3. Capacity
4. Illegality & immorality
5. Impossibility
6. Privity
7. Modalities
29
Consensual Contracts
>Bilateral and bonae fidei.
>Developed due to needs of expanding Roman economy and peregrine praetor influential in its development as influx of foreigners.
>4 types:
1. Sale (emptio venditio)
2. Letting and hiring (locatio conductio)
3. Mandate (mandatum)
4. Partnership (societas).
>Consent of parties was sufficient in consensual contracts.
30
Sale - general
>Emptio venditio.
>Archais law, mancipatio or stipulatio required for sale but their form made them an inconvenience especially as peregrine were commonly vendor/buyer.
>Essential requirements = agreement about thing sold and its price.
1. Agreement, 2. Thing, 3. Price.
31
Sale - agreement
>Consensus = agreement of wills.
>No need to prove agreement had occurred in each others' presence.
>Proof = conduct, arra, writing.
>Parties conduct often constituted proof.
>Practice of giving arra made proof straightforward.
>Arra never required just provided proof of serious intent.
>G.3.139: "arra is [merely] evidence of a contract of sale having been concluded."
>Arra = token of GF, seriousness of purpose given by the buyer, e.g. money (deposit), or item of value (ring).
>Buyer defaults = forfeits arra.
>Seller defaults = returns arra twice over (Greek practice so maybe Romans adopted).
>Writing as evidence became increasingly common in the Empire. J = contract not binding until put into writing, either party could withdraw until then but arra was forfeited.
32
The Thing Sold - general
>Generally, anything (corporeal or incorporeal) could be sold except those excluded from commercium.
>Some exceptional categories:
1. Prohibited things.
2. Things excluded from private ownership.
3. Things belonging to the purchaser.
4. Non-existent things (perished, future).
5. Res aliena.
6. Generic things.
33
The Thing Sold - prohibited things
>'Observances of the state' forbade the sale of things in certain circumstances.
>E.g. in early Emp, one couldn't buy a house with view to demolish it for profit.
34
The Thing Sold - things excluded from private ownership
>If the purchase knew the facts then the contract of sale was invalid.
>J.3.23.5: "If he is misled by the seller and buys them as private or secular, he can bring an action on purchase against the seller, on the ground that he has not been allowed to remain in possession. The action will allow him to recover his interest in not being misled."
>If the purchaser didn't know he was buying such things, the sale could have legal effect to the extent of recovering the value of his bargain.
35
The Thing Sold - things belonging to the purchaser
>=nullity.
>If buyer bought property in which he held a proprietary interest, sale was valid to the extent that the buyer's title had been incomplete, e.g. co-owner.
36
The Thing Sold - non-existent things general
>Pomponius, Sabinus, book 9: "There can be no sale without a thing to be sold."
>Distinction between future and perished things.
37
The Thing Sold - non-existent things - perished things
>Sale was void if property lost its identity or perished before the contract was made even if only part of it did.
>Less than half a house, then purchaser still had to honour contract but vendor relieves him of payment of the amount by which the value decreased.
>What is half a house? Is half a house even worth having? Is it still a house?
>If both knew = void.
>If buyer knew but not seller = contract stands.
>If seller knew but not buyer = no sale exists.
38
The Thing Sold - non-existent things - future things
>Recognised due to need to sell potential agricultural produce.
>Distinction between sale of an expected thing (emptio rei speratae) and sale of a chance (emptio spei).
>Emptio rei speratae = conditional sale = thing had to materialise in future = no thing then no obligation.
>Emptio spei = took chance so took risk = paid even if the thing didn't materialise.
>Difficult distinction to draw:
-depended on buyer's intention.
-next year's fruit crop = expected = there will be one even if its poor.
-next catch in fisherman's net = chance = there could easily be no catch.
>Existing inheritance could be sold, but not a future one. Dissuades unseemly dealings.
39
The Thing Sold - res aliena (another's property)
>Could still be sold if buyer and seller were unaware of the 3rd party's rights but purchaser had to return property to owner and could sue purchaser for breach of seller's duties to guarantee against eviction.
>If they knew = 'stolen goods' = no obligations are formed unless vendor knew and buyer didn't where delictual liability for theft for dishonest handling of another's property.
40
The Thing Sold - generic things
>Source of goods had to be sufficiently identified for the contract of sale to be valid.
>Otherwise there was no sale.
41
The Price - general
>Ulpian, Sabinus, book 1: "There is no sale without a price." D.18.1.2.1.
1. The price had to consist of money
2. The price had to be genuine (verum)
3. The price had to be certain, or at least ascertainable.
42
The Price - the price had to consist of money
>Established in late classical.
>Sabinians vs Proculians:
-Sabinians believed that the price in sale need not consist of money and that exchanging things constituted sale.
-Proculians believed that sale and exchange were dissimalr as sale consisted of the exchange of not two things, but money and a thing. Is money not a thing?
>Proculians prevailed as it was easy to distinguish between buyer and seller if money was used, which is necessary as buyers and sellers have different duties and remedies.
>Paul, Edict, book 33: "In exchange, one cannot discern which party is vendor, and which is purchaser." D.18.1.1.1.
>Could consist of money plus performance of a service or a thing (as could still make distinction between buyer and seller).
43
The Price - the price had to be genuine (verum)
>Price must be intended to be paid and not a sham.
>If shame or derisory then it was considered a gift not sale.
>Later Empire:
-laessio enormis = rule whereby if land was sold for less than half of its market value then the seller could rescind the contract unless buyer made up the difference.
-this protected small landowners against powerful neighbours and speculators.
-unknown if extended to movables.
44
The Price - the price had to be certain, or at least ascertainable
>Had to be certainty of price as well as of subject matter.
>Parties had to agree on price, otherwise = void.
>"certum est quod certum reddi potest" = "that is certain which is capable of being made certain."
>So sale valid if price, though not fixed, was ascertainable by reference to verifiable facts.
45
Once contract made
>Once parties had agreed on subject matter and price, the contract was perfect, i.e. fully made.
>Parties acquired certain duties and the risk of damage to the property sold was transferred to the buyer.
46
Transfer of risk and accretions
>Doctrine of risk = if neither party is at fault, who is to bear the loss if the property is damaged, lost, or destroyed?
>Risk of loss lay with the seller before the contract became 'perfect'.
>Once perfect, loss passed to buyer however, an agreement could be made in the contract for otherwise.
>Buyer was entitled to any fruits/accretions once sale completed.
>If seller was in mora, e.g. because of late delivery, he bore risk of any damage.
>Separation of risk and ownership = questionable but probably stemmed from the early nature of sale which was immediate (i.e. handing over of goods and money simultaneously.)
47
Duties of Seller - general
>4 principle duties:
1. Care for property before delivery
2. Deliver it with vacant possession
3. Warrant against eviction
4. Warrant against defects
48
Duties of Seller - care for property before delivery
>Consequence of the separation of risk and ownership.
>Bonus Paterfamilias standard of care so liable even for slight acts of negligence.
>Buyer only bore the loss if the seller was blameless (e.g. accident).
>In the classical period, the seller may have also been liable for custodia, which is strict liability for the safety of property.
>Therefore, only not liable is natural events of vis maior ('overwhelming force') e.g. floods, storms, violent theft (robbery).
49
Duties of Seller - delivery with vacant possession
>Delivery at agreed place and time so long as buyer had paid price or was willing and able to do so.
>No agreement on delivery time then assumed to be immediately given reasonable time to ensure property in a deliverable state.
>No place agreed then assumed that place was where contract was made.
>Delivery of thing and fruits/accretions which had occurred since contract was made.
>Accessories delivered too, e.g. slaves and clothes, beasts of burden and trappings, land and fixtures.
>Vacant possession = legally protected possession.
>Property had to be free of any charges/encumbrances.
>Seller was not under a duty to transfer ownership because it was more commercially convenient as obviates need for seller to prove ownership.
50
Duties of Seller - guarantee against eviction
>Guarantee didn't prevent an eviction but it entitled the buyer to sure for damages when evicted.
>As the duty evolved, the buyer's position improved:
1. Archaic/pre-classical law: evicted buyer had no remedies unless conveyed through mancipatio, then under 12Ts, an actio auctoritatis was available to recover double the price. It was common practice for seller to make a stipulation to compensate the buyer in case of eviction - usually for double the price (stipulatio duplae).
2. By classical, it was considered a breach of GF for the seller to refuse the necessary stipulation and could be sued for refusing to do so.
3. During classical, guarantee against eviction was implied in all contracts of sale. The actio empti was available for recovery of a simple indemnity but buyer could still request a stipulatio duplae.
>Sometimes, actio empti was preferable as unliquidated damages could be recovered not just fixed sum.
51
Duties of Seller - guarantee against defects - general
>Patents vs. latent defects.
>Patent = defects which the buyer was aware of, or were so obvious that he should have been aware of them.
>Latent = those other than patent.
52
Duties of Seller - guarantee against defects - patent
>Patent = defects which the buyer was aware of, or were so obvious that he should have been aware of them.
>Seller not liable for such defects, even if he'd given an express undertaking as to soundness.
53
Duties of Seller - guarantee against defects - latent
>Archaic & pre-classical law, seller not liable unless he'd given an express undertaking of soundness of goods then he was liable for breaching it.
>Mid-Republic: dishonesty by seller made him liable for defects he was aware of under the actio emptio.
>Late Republic, the increase in slave and cattle dealers led to the aediles issuing edicts which developed the contract of sale.
>Edict demanded that the seller declares slave's known defects and undertakes that the slave was free from undeclared defects. If refused to then buyer still had remedies:
-action for recission (actio redhibitoria) for 2 months.
-action for dimintion (actio quanti minoris) for 6 months.
>If seller took undertaking then buyer had 6 months for actio redhibitoria or a year for actio quanti minoris.
>Edict introduced implied guarantee of quality so remedies were available even if seller was unaware of the defects.
>A similar edict was introduced for beasts of burden and also imposed liability for 'what has been said or promissed' - dicta promissave - extended liability beyond guarantee.
>Unclear when edicts were extended to everything (but probs by J):
-Ulpian, Curule Aediles' Edict, book 1: "It must be realised that this edict applies to all sales, not only those of slaves but also those of anything else." D.21.1.63.
54
Latent defects - Action for recission
>Actio redhibitoria.
>Recover full purchase price, with interest, on returning slave to the seller.
>Only for serious defects.
55
Latent defects - action for diminution
>Actio quanti minoris.
>Less serious defects.
>Recover part of the purchase price.
56
The actio empti
>=Main remedy for the buyer in the contract of sale for breach of the seller's duties.
>Actio empti vs. actions introduced by the aediles: damages could be recovered under the actio empti (not just reduction in price) and the action wasn't subject to the short time limitation of the aedilitian remedies.
>Possibly assimilated in late law.
>Measure of damages was based on buyer's interest in thing sold so consequential loss could be recovered (if for defective goods consequential loss only available if seller knew of defects).
>J ruled that buyer couldn't recover more than double the price of the property that he had bought.
57
Duties of the buyer - general
1. Pay the price
2. Accept delivery
3. Reimburse expenses
58
Duties of the buyer - pay the price
>Pay price at agreed time or if none agreed than at time of delivery.
>Couldn't sue under actio empti until paid price.
>Seller breached duties or failed to deliver then didn't have to pay.
>Interest up to legal max (6% under J) payable if buyer delayed payment without good cause. Judge decided interest if no agreement made.
59
Duties of the buyer - accepting delivery
>Accept delivery at agreed time and place unless seller breached duties then could delay acceptance.
>Buyer = liable for not accepting delivery and seller's duty to safeguard property no longer applied unless he acted in BF.
60
Duties of the buyer - reimbursing expenses
>Buyer bore cost of safeguarding property between time contract made and delivery.
>Seller could recover expenses properly incurred.
>Seller's remedy = actio venditi = measure of damages assessed on basis of seller's interest in the sale taking place.
61
Variation by pacta - general
>Pacta = special terms or clauses agreed by the parties, which could vary the legal effects of the contract of sale.
>Terms agreed at time of contract then = fully enforceable but those made after only had effect as defence.
>Most common pacts:
1. Seller's right to withdraw
2. Seller's right to accept a better offer
3. Seller's right of first refusal
4. Buyer's right to reject.
62
Variation by pacta - seller's right to withdraw
>Price not paid by certain date then seller could recover property & call off sale.
>Relevant where buyer receives goods and agrees to pay later.
>Forfeiture clause.
>Seller couldn't sue for price once opted to withdraw from the contract except where buyer had damaged property when actio venditi for compensation in addition to the forfeiture clause could be used.
63
Variation by pacta - seller's right to accept a better offer
>Seller could call off sale if he received a better offer by a certain date.
>Original buyer given opportunity to match it.
>Objective - better offer? Increased price, convenient payment, earlier payment, more reliable person?
64
Variation by pacta - seller's right to first refusal
>Could buy back property if buyer sold in future.
| >Had to match offers to secure purchase.
65
Variation by pacta - buyer's right to reject
>Buyer can reject the goods if found to be unsatisfactory after a period of trial.
>Sale of certain consumables, e.g. wine, sale on approval was the usual practice.
>If buyer didn't taste within specified period, he was deemed to have approved the purchase.
>Property held on approval damaged or destroyed without buyer's fault then seller bore loss.
66
Letting and hiring - general
```
>Locatio conductio.
>Hire = bilateral bonae fidei contract.
>The locator let out a thing, or his services, or the completion of a piece of work to the conductor.
>Gaius, Common Matters, book 2: "Lease and hire is close to sale and purchase, and it is formed by the same rules of law."
>3 different types of hire:
1. Hire of a thing
2. Hire of services
3. Hire of a piece of work
```
67
Letting and hiring - hire of a thing
>Locatio conductio rei.
>Conductor was allowed the use and enjoyment of a thing by the locator in return for the payment of rent.
>Payment normally had to consist of money but exception with agricultural land where the produce of the land was frequently used as payment.
>Agree duration period for the hire, but if no agreement then either party could renounce at any time.
>Agricultural land - an implied reletting on a yearly basis was allowed - conductor continued as tenant unless given notice.
>Implied extension considered as a new lease not continuation of old.
>Hire could end through destruction/termination of subject matter or misconduct.
>So if locator prevented conductor's enjoyment, latter could terminate contract and sue for damages.
>Death didn't terminate unless agreed otherwise.
68
Letting and hiring - hire of a thing - what if locator sold property to 3rd party?
>Contract of hire wasn't automatically ended by sale.
| >If interfered with conductor's enjoyment - could sue for damages. But then could be evicted.
69
Letting and hiring - hire of a thing - duties of the locator
>Locator delivers property - along with accessories - to conductor's detentio (not possession).
>If property sold before expiry of hire then buyer's agreement often secured not to interfere with conductor's enjoyment.
>Locator had to maintain maintain hired thing in good repair unless damaged by conductor's negligence.
>Conductor could recover expenses for undertaking reasonable maintenance of the property.
>Locator = liable for damage caused by undisclosed defects which he was aware or should have been aware of.
>Locator SoC = BF.
70
Letting and hiring - hire of a thing - duties of the conductor
>Accept delivery & pay in lump sum or instalments.
>Security for rent could be agreed and was implied for land (as produce of land regarded as the security, the locator having a lien (hypotheca) on the crops.
>Property's character had to be preserved.
>Couldn't use in any unauthorised way.
>BF SoC.
>Return substantially in original state, save for wear and tear.
>Allowing property to decrease in value could be seen as a breach of duty.
>Loss: Risk of accidental/unpreventable loss was on locator.
>Only partial loss: Tenant entitled to a rebate or a remission of rent if damage caused by exceptionally abnormal conditions, but not otherwise.
71
Letting and hiring - hire of a thing - duties of both parties
>Duties of both parties could be varied by agreement.
>Remedies available for enforcement of duties:
-actio locati for locator
-actio conducti for conductor.
>Measure of damages = P's 'interest' in contract's performance.
>Tenants generally didn't have proprietary interests in RL.
72
Letting and hiring - hire of services - overview
>Locatio conductio operarum.
>Locator placed his services at the disposal of the conductor in return for payment.
>BF SoC.
>If locator professed a particular expertise, he had to prove competent for the work he undertook.
>Conductor could be liable for failure to provide e.g. safe work premises/safe system of work.
>Locator's death ends contract.
>Unless contract had been personal, conductor's death ends contract.
73
Letting and hiring - hire of services - which services could be hired?
>Operae illiberales - those which were typically performed by slaves.
>Wide meaning so services excluded from contract = liberal pursuits (those where they would not wish to receive money).
>E.g. jurists, advocates, physicians, surveyors, teachers in higher education.
>Distinction between liberal pursuits and other services could also depend on person's status not just nature of the service.
74
Letting and hiring - hire of a piece of work - general
>Locatio conductio operis.
>Locator placed a thing with the conductor for the conductor to do some work in relation to it.
>Conductor paid not locator.
>Conductor could subcontract (unless promised to do personally).
>Sale if materials belonged to person working on them.
>Payments could be made in instalments subject to satisfactory progress, but couldn't disapprove of work without reasonable grounds - standard of the bonus vir i.e. the judgement of an upright man.
>Completed within agreed time or otherwise what would be considered as a reasonable time.
>BPF SoC - locator.
>Inexperience not a defense.
>Contract not terminated by either party's death - heirs = bound.
75
Letting and hiring - hire of a piece of work - what if materials are destroyed/damaged?
>If whilst conductor working on them then risk initially lay with him.
>Destruction through vis maior then risk lay with locator - makes payment & receives nothing.
76
Letting and hiring - hire of a piece of work - maritime code
>A places cargo on B's ship considered hire of piece of work.
>Maritime code of Rhodes.
>Paul, Sentences, book 2: "The Rhodian law provides that if cargo has been jettisoned in order to lighten a ship, the sacrifice for the common good must be made by common contribution."
>Paul, Edict, book 34: "the owners who have lost the cargo for whose carriage they contracted may sue the captain on their contracts.. Then, the captain may bring an action on his contracts of carriage against the others whose goods have been saved, so as to distribute the loss proportionately." D. 14.2.1.-2pr.
>Rule ensured loss shared proportionately.
>If jettisoned property eventually saved the Rhodian law no longer applies. Remained owner's property, not abandoned.
77
Mandate - general
>Madatum.
>Bonae fidei contract, whereby a promisor gratuitously agreed to perform a service requested by another, the mandator.
>Use expanded considerably.
78
Mandate - the essentials
>Gratuitous promise otherwise = hire.
>If an honorarium agreed, enforceable from early Empire through cognitio extraordinaria procedure.
>Had to be moral, legal and possible.
>Unclear if mandator had to have an 'interest' in the service, but seems that way even if interest not apparent on face value.
79
Mandate - duties of the parties - overview
>Imperfectly bilateral contract as duties didn't arise simultaneously.
>Promisor's duties = immediately from making promise but mandator's were subject to performance of service.
80
Mandate - duties of the parties - duties of promisor.
>Perform mandate, subject to the right of renunciation.
>Couldn't act ultra vires but could do whatever reasonably necessary to achieve it.
>If I specified a price and you bought at a figure in excess of this Sabinians thought you couldn't recover anything but Proculians thought you would have an action up to limit of specified price.
>Promisor couldn't profit from the mandate.
>Classical, SoC for promisor = only liable for dolus but by end of era BPF SoC required.
>Increased SoC probs reflects growing use of giving of honorarium as promisor was no longer acting gratuitously.
81
Mandate - duties of the parties - duties of the mandator
>Accept performance of the promisor, inc. liabilities & expenses properly incurred carrying out request.
>BPF SoC, e.g. provide safe place to work.
82
Mandate - remedies
>Actio mandati directa for mandator.
>Actio mandati contraria for promisor.
>Promisor = liable then infamia resulted.
83
Mandate - termination - list
```
>Main ones:
1. Renunciation
2. Death.
>Also:
-mutual consent
-promise became impossible to perform
-completion of task.
```
84
Mandate - termination - renunciation
>Could be renounced before promisor commences performance.
>Promisor's renunciation stopped mandator obtaining similar service then he's liable to that extent.
>If after start, effective but party renouncing = liable for any damage/expense caused to other.
>Mandator renouncing had to inform 3rd parties dealing with promisor.
85
Mandate - termination - death
>Ended mandate.
>If mandator died, heirs had to notify promisor & reimburse expenses incurred up to that time.
>Controversy. J = prepared to enforce mandates that were to be performed after the mandator's death.
86
Mandate & Roman approaches to agency.
>Most important function of mandate = use of mandate to create a form of agency.
>E.g. mandator gets promisor to buy a good for him - Roman principle of privity, prima facie, means that promisor's act couldn't create contractual contracts between mandator & 3rd party. In effect, acting as agency as mandator had to transfer any rights/obligations.
>Justianic law, 3rd party finally given certain legal remedies directly against mandator.
>First remedies given to slaves & sons-in-power as commercial agents.
>These remedies finally extended to all forms of agency, even where promisor = independent person who was sui iuris.
87
Mandate & Roman approaches to agency - those with no contractual capacity
>Slaves had no contractual capacity so transactions they entered into = void or unenforceable.
>Became inconvenient as growing necessity to use them as agents.
>So late Rep, the praetors introduced the actions known as actiones adiecticiae qualitatis, which were actions made directly against PF.
>Allowed parties to sue slaves acting as business agents directly.
>These actions created an 'exceptional' liability for PF.
>PF would be subject to the condemnatio.
88
Mandate & Roman approaches to agency - actiones adiecticiae qualitatis
1. Actio de peculio
2. Actio de in rem verso
3. Actio tributoria
4. Actio quod iussu
>In addition to 4 listed above, there were 2 further actions included used for agents who were slaves or sons-in-power and where they were individuals who were sui iuris.
5. Actio insistoria
6. Actio exercitoria
89
Mandate & Roman approaches to agency - actio de peculio
>If creditors were to sue on account of debts incurred by the slave when trading using his peculium, the slave couldn't be sued directly as he didn't have legal standing in court so this action, which was based on the slave's peculium was used.
>PF could be sued but only liable to value of peculium at time of judgement (after having deducted any money owed to them as preferred creditors.
>Creditors could only bring action if value of peculium supported such claims.
90
Mandate & Roman approaches to agency - Actio de rem in verso
>Action employed when a slave has used the benefits obtained from a transaction to enrich the PF's estate.
>Benefit directed at necessities, e.g. clothes, not luxuries.
>Can be used in conjuction with actio de peculio, and when actio de peculio can't be used because, e.g., the property has been turned over to master or slave's peculium has been taken by PF.
>PF's liability was limited to the extent of his enrichment at the time of condemnation.
91
Mandate & Roman approaches to agency - actio tributoria
>Used when a slave, with PF's knowledge, incurred debt greater than his peculium's value in a transaction.
>Praetor could force PF to liquidate the assets comprising the peculium and divide between the creditors.
>If creditor thought PF not distributed fairly, he could sue with this action to force fairer division.
>PF couldn't deduct anything owed to him before division.
>Liability limited to part of peculium actually used in trading.
92
Mandate & Roman approaches to agency - actio quod iussu
>PF fully liable for any transaction slave entered through his express authorisation.
>Possible PF's express authority had to be communicated to other party but texts are ambiguous.
>Gaius - available to 3rd parties dealing with servile agents & agents who were sons-in-power.
93
Mandate & Roman approaches to agency - actio insistoria
>Action lay against someone to enforce contracts made by another who had been appointed to manage his business.
>Master/employer = fully liable provided that they were in the scope (express of implied) of the business agent's authority.
94
Mandate & Roman approaches to agency - actio exercitoria
>A shipowner was fully liable under this action for commercial debts made by his or another's slave or worker employed as captain of a merchant ship, provided that transaction was within scope of captain's authority.
95
Partnership - definition
>Societas.
>Societas = bonae fidei contract whereby 2 or more persons agreed to associate in a common venture for their mutual benefit, which was often financial profit but didn't have to be pecuniary.
96
Societas - essentials
>Common venture = possible, lawful, and not immoral or incompatible with good faith.
>Each partner had to contribute to the common venture and each had to be allowed a share in the benefits.
>Ulpian, Sabinus, book 30: If shares in a partnership have been left unspecified, it is agreed that they are to be equal.
>Same rule applies to losses, although is possible for arrangement whereby one partner doesn't incur any loss because e.g. their contribution has been so much greater.
>Intention to form partnership.
>Agreement about its membership - to introduce a new partner all partners must consent. As Uplian, Edict, book 31 says: ...my partner's partner is not my partner.
97
Societas - position of partners
>Each partner had to account for his activities in pursuance of the common venture.
>If a partner entered a contract in relation to partnership business, he alone could sue or be sued on it; but the duty to account for his actions meant that the other partners would be affected by the contract, e.g. if he bought property, each partner would have a right in rem to secure his respective share.
>Pre-classical only requirement was that each partner acted in GF, i.e. without dolus but later by classical, he became liable for negligence & SoC was that expected of a man in his own affairs.
>Any loss resulting from partner's negligence was borne by that partner irrespective of sharing loss as agreed.
>Partners = entitled to reimbursement for expenses properly incurred.
>Which expenses were recovery. Controversial - was it those incurred in pursuit of the venture and not simply in consequence of it? Labeo takes strict view whereas Ulpian and Julian would allow consequential too,
98
Societas - remedies
>Actio pro socio = main remedy.
>Could be used as a friendly suit to make minor adjustments in partners' positions or as a hostile action for breach of a partner's duties.
>2 consequences of the action if for breach of duty:
1. Infamia.
2. Partnership was terminated.
>Actio communi dividundo = for distribution of partnership property as end of the partnership.
>Delictual actions may also be available if for example a partner stole partnership property.
99
Types of partnership
>Four types:
1. Partnership for a single transaction.
2. Partnership in a particular business.
3. Partnership in general business.
4. Partnership in all assets.
100
Types of partnership - partnership for a single transaction
>Parties came together for a single transaction or operation.
101
Types of partnership - partnership in a particular business
>Parties agreed to operate a particular kind of business.
>The farming of taxes was a notable feature of Roman life for several centuries. The State (usually on a 5 year contract) sold the right to collect taxes to partnerships of tax farmers (publicani).
>More typical = partnerships engaged in small-scale manufacturing.
102
Types of partnership - partnership in general business
>Businesses where the parties associated for the purpose of all business transactions.
>Presumed general business if type of partnership not specified.
103
Types of partnership - partnership in all assets
>Partnership where all the property of the parties formed a common fund of assets.
>All property pooled.
>Oldest form originating from practice of co-heirs keeping inheritance intact for common enjoyment.
104
Termination of partnership - list
>Modestinus, Rules, book 3: "It is dissolved through renunciation, death, change of civil status, and poverty." (D.17.2.4.1).
>A hostile actio pro socio ended a partnership.
>Partnership ended if its subject matter was exhausted, lost, or destroyed.
>Ended if purpose accomplished or became impossible to achieve. Or if partnership was for a fixed duration, where the relevant period elapsed. Or where continuation of partnership was subject to a condition was not met or by mutual consent.
105
Termination of partnership - renunciation
>If any partner renounces, the partnership ends.
>Although renouncing partner had to compensate the others if his withdrawal unreasonably prejudiced their interests.
>If partner acted fraudulently in renouncing, he had to share any profit accrued to him through the renunciation with the others. E.g. if a man knew he was about to receive an inheritance in a partnership in all assets.
>Normally expressly made but could be implied.
>Remaining partners could continue partnership through forming a new one.
106
Termination of partnership - death
>Death of any partner ended the partnership unless original agreement specified heir could succeed a deceased partner.
>Exception - tax farming partnerships survived death.
>Pomponius, Sabinus, book 17: "Although the heir of a partner is not a partner, he ought to complete such business as was begun by the dead man."
107
Termination of partnership - loss of civil status
>If partner suffered capitis deminutio, partnership terminated but remaining partners could form new one.
>Later law, only serious forms of capitis deminutio had terminating effect, not if it was minima.
108
Termination of partnership - poverty
>A partnership ended when a partner was made bankrupt or had his property confiscated by the State.
109
Verbal Contracts - intro
```
>Created through utterance of particular words in a specified manner.
>3 types:
1. Dotis dictio
2. Iusiurandum liberti
3. Stipulatio (most important)
>All 3 = unilateral & stricti iuris.
```
110
Verbal Contracts - dotis dictio
>'The pronouncing of the dowry'.
>Declaration of the dowry's composition, usually made before marriage.
>Became obsolete in late Empire when informal promises to create a dowry were given full validity.
111
Verbal Contracts - iusiurandum liberti
>'The oath of a freedman'.
>Where freedman took an oath in his patron's presence immediately after manumission, to perform services for the patron.
>Became infrequent in Empire because increased use of stipulatio to achieve the same end.
112
Verbal Contracts - stipulatio - definition
>Pomponius, Sabinus, book 26: "A stipulation is a verbal expression in which the man who is asked replies that he will give or do what he has been asked."
>Unilateral & strici iuris contract consisting of a formal promise given in response to a formal question.
113
Verbal Contracts - stipulatio - intro
>Unclear origins, but predates 12Ts.
>Developed out of sponsio (formal guarantee to pay another's debt - oath made to gods) as a secular contract when religious associations faded.
>Limited use at first but soon extended so that virtually any legal agreement could be affected by them.
>Potential universality of stipulatio suggest that in early Roman law it was the law of contract not contracts. But this then begs the questions to why other contracts emerged & flourished after establishment of stipulatio as a contract of wide scope?
>Drawbacks - esp. actual presence of parties - inspired growth of consensual contracts.
>Evolution of stipulatio: Watson vs. Pugsley.
114
Verbal Contracts - stipulatio - evolution - Alan Watson in The Evolution of Law (1985)
>Romans in archaic & pre-classical law had general theory of contract because of all-embracing nature of stipulatio.
>"In most cases an individual type of Roman contract arose subsequently to stipulation when, for whatever reason, a stipulatio was inappropriate or inefficient for that type of situation and when there was a societal need. Thus, almost every subsequent contractual type is a derogation from stipulatio."
>E.g. mandate arose as stipulatio was ill-suited to gratuitous promises usually made between friends.
115
Verbal Contracts - stipulatio - evolution - David Pugsley
>Didn't become all-purpose contract until later than thought in classical period as originally it was confined to res mancipi.
>Classical law of contract "seems to have developed piecemeal to satisfy the needs of commerce."
>When rest of early RL so rudimentary how could stipulatio have such wide application?
116
Verbal Contracts - stipulatio - formal requirements
>Formal question followed by a formal answer.
>Promisor had to make a verbal answer.
>Q&A had to form one continuous transaction - substantial interval could invalidate contract.
>Terms had to be clear - ambiguity was construed against promisee.
>Answer couldn't introduce fresh terms or be made conditionally in response to an unconditional question.
>Strict insistence on use of 'spondesne? spondeo' = relaxed during Republic and other worlds were allowed before further relaxation in classical period when languages other than Latin were regarded as sufficient.
>Ulpian, Sabinus, book 48: "It makes no difference whether the reply is made in the same language or in another."
>Important stipulations are unlikely to have been made in practice without witnesses or some written record (cautio) of the transaction.
>Late Empire, rescript by Emperor Leo in 472 AD provided that stipulation was valid whatever the form of words used as long as the intentions of the parties were clear.
>J eroded need for simultaneous presence as cautio evidenced such even if they weren't. Could be rebutted by evidence of a party's absence.
117
Verbal Contracts - stipulatio - formal requirements - cautio
>Cautio = common practice from late Republic, which recorded Q&A form had been followed.
>As of late classical, presumed Q had preceded A, if cautio alleged that promise had been made so evidence of Q was no longer necessary.
>Justinian: If cautio was made it was taken as valid and presumed both parties present even if they weren't.
>Although common, cautio never requirement.
118
Verbal Contracts - stipulatio - remedies
>If a stipulatio was made for the payment of a specific sum of money or some specific thing, the appropriate remedy was a condictio; otherwise, the promisee had the actio ex stipulatu.
>Actio ex stipulatu = less convenient for P than condictio, which didn't have to state basis of liability in the formula so whether property sufficiently specified was matter of procedural importance.
>Unilateral contract so only promisee had remedy, but in practice, contracts would often consist of several stipulations by both parties - essentially a bilateral transaction, even if each stipulation was regarded in theory as a separate contract.
119
Verbal Contracts - stipulatio - classification of stipulatio - sources
>Primary classification was based on source of the obligation - judicial, praetorian, conventional.
>Judicial stipulations = those which originate from a judge.
>Praetorian stipulations = those which originated from the preator. E.g. cautio damni infecti (occupier of dangerous property promised to indemnify neighbour if damage occured).
>Conventional stipulations = those which arise as a result of an agreement between parties.
>Praetorian & judicial = not really contracts, more like legally enforced promises to do/abstain from doing something.
120
Verbal Contracts - stipulatio - classification of stipulatio - list
1. Source of obligation
| 2. Simple, ex die or conditional stipulations
121
Verbal Contracts - stipulatio - classification of stipulatio - simple, ex die or conditional stipulations
>Simple = where obligation arose at once and unconditionally.
>Ex die = obligation arose at one, but which couldn't be enforced until a specified day or occurrence of a specified event, which was certain to happen. Promisor could choose perform at earlier date. 'When I die' allowed but not 'after my death'.
>Conditional = obligation to perform might never arise, Such conditions were suspensive and precedent: satisfaction of condition preceded the performance of the obligation, which was suspended until that time.
>Promisor not required to perform obligation until condition satisfied but he couldn't revoke his promise, nor could he do anything to prevent the fulfilment of the condition.
122
Verbal Contracts - stipulatio and finance - general
>Stipulatio = important in Roman commerce and finance.
>3 particularly important uses of stipulatio:
1. Novation of debts
2. The Creation of surety (adstipulatio or adpromissio)
3. Imposition of penalties
123
Verbal Contracts - stipulatio and finance - novation
>Process whereby an obligation was terminated and replaced by a new one created by stipulatio.
>New one had to arise from extinguished one but couldn't be identical (at least in classical law).
>Why bother novating a debt?
>Promisee improved his position - more recent = easier to prove and enforce through effective remedies if stipulation breached.
124
Verbal Contracts - stipulatio and finance - surety - types
>2 forms of surety created by stipulation:
1. Adstipulatio
2. Adpromissio.
125
Verbal Contracts - stipulatio and finance - surety - adstipulatio
>In this form of surety a debt that was already owed to one creditor was promised to another creditor.
>As far as debtor concerned, he only owed one debt and could pay either.
>Accessory creditor can enforce on main creditor's account.
>If accessory creditor received money he had to give to main creditor.
>If accessory creditor defrauded the principal, he was liable to compensate the latter under chapter 2 of the lex Aquilia 287 BC.
>Eventually superseded by contract of mandate and became obsolete by late Empire.
126
Verbal Contracts - stipulatio and finance - surety - adpromissio - types
>This form of surety consisted of a stipulation to pay the debt of the principal debtor if he failed to pay.
>3 forms chronologically:
1. Sponsio - confined to citizens.
2. Fidepromissio - open to foreigners as well + slight variation of words.
3. Fideiussio - emerged in late Republic and superseded other 2.
127
Verbal Contracts - stipulatio and finance - surety - adpromissio - sponsion & fidepromissio
>Unattractive to creditors due to a no. of restrictions.
>Could only be used to guarantee obligations that had been created by stipulatio and didn't bind guarantor's heirs.
>Lapsed after 2 years,
>If plurality of guarantors each was liable only for his proportionate part of debt so if one became insolvent, the creditor was disadvantages.
128
Verbal Contracts - stipulatio and finance - surety - adpromissio - fideiussio
>Not subject to limitation period.
>Binded heirs.
>Could be used to guarantee any debt.
>Creditor could enforce payment against any of the guarantors if more than one though Hadrian allowed guarantor to claim beneficium divisionis whereby he was liable only for his proportionate share of the debt.
>Under J, if the creditor sued one of the persons liable for the same debt, the others weren't automatically released but the creditor could be compelled by a surety to proceed against the principal debtor first.
129
Verbal Contracts - stipulatio and finance - surety - adpromissio - further classification
>Obligations that could arise in adpromissio and other forms of plurality of parties are sometimes described as solidary or correal.
130
Verbal Contracts - stipulatio and finance - surety - adpromissio - further classification - solidary and correal
>An obligation was solidary if it benefitted/bounded persons jointly, and those persons could sue or be sued individually for the whole of what was due under the obligation.
>Simple solidary if action didn't exclude/discharge others.
>If it did then it was correal.
>Applied not only to stipulatio but also applied generally through RL of contract and delict.
131
Verbal Contracts - stipulatio and finance - penalties
>Imposition of penalties through stipulatio = common in RL.
>A penalty clause (stipulatio poenae) could be used to secure, e.g., obligations arising under various contracts.
>Considering penalty as excessive not generally ground for its non-application.
132
Contracts re - general & list
```
>4 contracts:
1. Mutuum
2. Commodatum
3. Depositum
4. Pignus
>Obligations arose through the delivery of a corporeal thing.
```
133
Contracts re - mutuum
>Unilateral and strict iuris contract, consisting of an essentially gratuitous 'loan' for consumption of things that could be measured and that were consumable through use, i.e. fungibles (often an amount of money).
>Loan = misleading as ownership transferred to borrower through traditio.
134
Contracts re - mutuum - development
>Importance grew after the lex Poetelia 326 BC.
>Before then obligations often incurred through nexum which was a form of bond whereby debtor bound himself through pledging his body as security for paying a debt.
>Lex Poetelia required a formal judgement to be made before seizure and removed removed threat of death & slavery so debtors position improved, nexum declined and was superseded by mutuum.
>Mutuum could be contracted by persons without commercium unlike nexum.
>Most used for moneylending and stipulations could be used to attach subsidiary terms. E.g. interest payable, date of repayment.
>Rates of interests = regulated throughout Roman history.
>Max rate in classical period = 12%, J reduced to 6% for commercial loans, 4% private ones.
>Later law, whole agreement often made through stipulation, so mutuum lost importance.
135
Contracts re - mutuum - duty to restore
>Borrower had to restore not the thing itself - as consumed by use - but the equivalent in size, number, and quality.
>Contract was stricti iuris so even if object = lost/stolen, duty to restore remained. Except if loan was to finance cargo ship and it didn't complete journey safely. Same for athletes - loan was only returnable, together with interest, if victory was gained.
>Lenders took the risk.
>Condictio allowed to enforce borrower's duties.
>Lender had no duties since unilateral.
>No contractual liability, but could be liable for delict if thing loaned defective.
136
Contracts re - mutuum - S.C. Macedonianum (2nd half of 1st C AD)
>Ulpian, Edict, book 29: "in order to teach pernicious moneylenders that a son's debt cannot be made good by waiting for his father's death, that a person who has lent money to a son-in-power is to have no claim or action even after the death of the person in whose power he was."
>Early empire only concerned loans of money.
>Restrictive interpretation.
137
Contracts re - commodatum - general
>Gratuitous loan of a corporeal thing (mostly movables, rarely immovables) for use, the thing to be returned at the end of the loan.
>Ownership of object, unlike mutuum, remained with the owner.
>Bilateral and bonae fidei.
>Gratuitous, if it was for money then it wasn't commodatum but locatio conductio.
>Borrower didn't require ownership or possession only physical control so valid commodatum possible even if lender not owner.
>Specified purpose & duration otherwise 'reasonable' amount of time.
138
Contracts re - commodatum - duties of the borrower
>Use for agreed purposes otherwise liable for theft unless believed owner would have consented but then still liable for damages to property during unauthorised use.
>Liable for any damages if he was in mora.
>Standard of care beyond BPF as Gaius, Provincial Edict, book 9: "very careful head of family". Diligentissimus paterfamilias.
>Liability for custoday, i.e. everything except loss caused by vis maior.
>Borrower had actio furti against thief.
>J gave option for lender to sue either the thief or borrower.
>Return with any accretions at end of use.
>Ulpian, Edict, book 28: "returned in worse condition it is understood not to have been returned at all".
139
Contracts re - commodatum - duties of lender
>Allow borrow to use thing for agreed period unless misused.
>Reimbure borrower for any abnormal expenses incurred in using the thing, borrower keeps until reimbursed.
>Lender not liable for negligence, only dolus.
>Liable for damage if he knew of the defects & didn't disclose them.
140
Contracts re - commodatum - joint benefit
>If loan beneffited both parties then borrower SoC = that expected of him in his own affairs (diligentia quam suis rebus).
>Benefitted only lender then borrower only liable only for dolus and lender liable for any defects which he ought to have known.
141
Contracts re - commodatum - remedies
>Lender - actio commodati to enforce borrower's duties.
>Borrower could retain thing until lender has given what may be owed to him and if expenses incurred exceeded thing's value then borrower had the actio commodati contraria.
142
Contracts re - depositum - general
>Bonae fidei, imperfectly bilateral contract (only one agent undertakes duty), whereby the depositor handed over a movable thing to a depositee for safekeeping.
>N/A to land.
>Gratuitous otherwise = hire.
>Depositee didn't receive ownership or possession so depositor need not be owner.
>Contract = entirely for depositor's benefit as otherwise it was commodatum (or hire if paid).
143
Contracts re - depositum - duties of depositee
>Keep thing safe, liable only for dolus.
>Celsus, Digest, book 11: "The statement made by Nerva that gross fault is equivalent to fraud was not accepted by Proculus but seems to me to be very true."
>Controversy.
>Parties could agree, as in other contracts, to vary depoitee's SoC by imposing BF SoC, but couldn't agree to lessen SoC.
>Return thing on demand, and in same condition save for wear and tear, as well as any accretions.
144
Contracts re - depositum - duties of depositor
>Liable, if negligent, for damage caused by the deposited think, BPF SoC applying.
>Reimburse depositee for expenses incurred looking after property and returning it to depositor's chosen venue.
145
Contracts re - depositum - remedies
>Depositor - actio depositi for breach of depositee's duty.
>Depositee found liable then infamia resulted (harsh but dolus represented breach of trust).
>Depositee would also have to pay damages which were doubled if deposit made in emergency (depositor had less time to choose his man).
>Depositee - actio depositi contraria for recovery of expenses.
146
Contracts re - depositum - special deposits - list
1. Depositum irregulare.
| 2. Sequestratio.
147
Contracts re - depositum - special deposits - depositum irregulare
>Depositum irregulare was a deposit of fungible things (usually money) to a depositee (banker), who would become owner but had duty to restore equivalent on demand.
>Not primarily intended to benefit transferee - custodian rather than borrower - which is what distinguishes it from mutuum.
148
Contracts re - depositum - special deposits - sequestratio
>Deposit of property by 2 or more persons in dispute about their rights in the thing.
>Depositee received legal possession, whilst holding property until dispute resolved - this prevented time running (for purposes of usucapio) in fabour of any of the disputants.
>Returned once resolved.
>For both land and movables.
149
Contracts re - pignus - general
>Pignus ('a pledge') = bonae fidei & bilateral contract, consisting of the transfer of property as security by a borrower to a lender by way of mortgage.
>Lender received legal possession.
>Read in conjunction with real security in the law of property.
150
Contracts re - pignus - development
>Pignus evolved from fiducia, which required formal conveyance for property transfer. Fiducia was therefore cumbersome and deprived borrower of ownership of the thing being pledged.
>Pignus' transfer could be affected by traditio & borrower retained ownership, only parting with possession.
>Still, fiducia didn't disappear until late Empire when formal modes of conveyance became obsolete as it was more popular with lenders given that they had greater rights over property than in pignus.
>Co-existed but pignus became the most usual form of real security.
151
Contracts re - pignus - position of parties
>Borrower liable for damage caused by defects in property, SoC = BPF.
>Lender, if had control as sometimes borrower kept, had to safeguard property with BPF SoC.
>Lender mistreated property then contract terminated.
>Lender can recover expenses which were properly incurred and any profit = off-set against debt.
>If debt repaid then lender had to return thing with accretions.
152
Contracts re - pignus - remedies
>Lender's duties could only be enforced if borrower paid the debt, or was ready to, through an the actio pigneraticia.
>Borrower failed to repay debt then lender retained possession but as not owner, he couldn't sell/dispose of it so customary to agree lender should have right of sale if debt not paid.
>If sold lender had to account for any excess once debt deducted, the interest and his expenses in arranging the sale are sold.
>So wide spread to allow lender right of sale, it became implied in classical period unless expressly excluded.
153
Contracts re - pignus - Hypothec
>More flexible form of mortgage contract than pignus, emerging in later Republic, which promised the lender rights in the borrower's property in the event of the debt being unpaid, the borrower meanwhile retaining ownership AND possession.
>Mainly used for land, but could be used for movables as well.
>Common for tenants to agree that the landlord could distrain on goods or crops if rent unpaid.
>Possible to secure more than one loan on same piece of property but priority was determined by order of the charges' creations so borrower under duty to give notice of existing charges, otherwise = criminal offence.
>Late Empire, priority given to those charged which were formally registered/witnessed.
154
Contract litteris - early development
>PF would record financial transactions - 2 types of entries: one evidencing debt and another creating a debt.
>Monetary obligation created through creating a debt - the contract litteris.
>Debtor had to consent but unclear how this was evidenced.
>Obsolete long before Justinian.
>Presence of both parties not required = advantage over stipulatio.
>Only for Roman citizens (Proculians) although Sabinians thought foreigner could be debtor.
>Stricti iuris and unilateral.
>Novation (so old debt more provable as new one) became main purpose of contract litteris.
155
Contract litteris - later development
>In Empire, growth of banking saw decline of private ledgers so contract litteris = obsolete by late Empire.
>J still included in his classification of contracts but contract litteris in this case was a written acknowledgement of a fictitious loan of money, which would bind debtor and allow creditor to sue on it, using it as evidence of the alleged debt.
>Burden of proof, originally on debtor was eventually imposed on creditor.
>Under J, debtor had 2 years to deny the debt and if he failed to do so, he was bound by the original acknowledgement so it acquired contractual force even though it was primarily evidentiary in function.
>Seems out of place in J's classification as his classification focused on source of contractual obligations rather those which were evidential.
156
Innominate Contracts - general
>Certain agreements for mutual services, enforceable because one part had performed his part of the bargain.
>Didn't readily fit into any of J's 4 categories so constituted fifth separate category and remained unnamed so as not to disturb the symmetry.
>Not the contracts themselves which were innominate but their category.
157
Innominate Contracts - development
>Not a uniform evolution.
>Developed as the number of contracts in RL was quite limited and there was an eventual need to give certain agreements contractual force, even though they didn't constitute any of the recognised contracts.
>Once recognised, actions were allowed that enforced the bargain, putting the parties into the position in which they would have been if both parties had carried out their obligations.
>General action for these cases = the actio praescriptis verbis.
>Use of general action may further explain why unnamed.
158
Innominate Contracts - main 4
1. Transactio
2. Aestimatum
3. Permutatio
4. Precarium
159
Innominate Contracts - transactio
>Transactio was the compromise of a legal action, e.g. drop legal claims in return for benefit promised by other party.
>If stipulatio not used and in the absence of fraud, a compromise was agreed informally, actio praescriptis verbis available to enforce.
>Ulpian, Edict, book 50: "A person who makes a compromise does so on the basis that a matter is doubtful and the outcome of a lawsuit uncertain or not yet determined."
160
Innominate Contracts - Aestimatum
>A conditional sale in which the owner of a thing entrusted it to a transferee on a sale-or-return basis.
>Parties specify period withing which transferee returns property or pays agreed price for it.
>Usually used when transferee wants to sell it on to another party for profit.
>Ownership retained by owner until price paid or time expired and thing returned.
>Inconsistency in texts, but most plausible view = in absence of agreement, risk lay with the transferor unless the transferee had initiated the transaction.
>Where risk lay with transferor, it was in respect of accidental loss.
161
Innominate Contracts - Permutatio - general
>Contract of exchange or barter.
>Many of the rules of sale, e.g. rules on compensation for defective goods, applied to barter.
>Paul, Plautis, book 5: "Aristo says that since barter is akin to purchase, there should de a warranty that a slave given for this reason is healthy, free of thefts ad delicts, and not a runaway."
>If one party transferred thing but the other didn't then could bring a condictio to reclaim thing and sue for damages (unless one party transferred thing but wasn't owner).
162
Innominate Contracts - permutatio - differences between sale and barter
1. No money.
2. There was a duty to pass ownership in barter so transferee could sue for any defect in title before he was evicted by owner unlike in sale.
3. Obligation in barter only arose when one party had performed, and not on mere agreement as in sale.
4. Risk not passed until one thing transferred.
163
Innominate Contracts - precarium
>Contract consisting of a gratuitous grant of the enjoyment of land or movables.
>Most commonly used in relation to land.
>Differed from commodatum as grant wasn't for fixed duration and could be terminated by grantor at any time. Additionally, grantee had general enjoyment of property and a right to its fruits - he wasn't restricted to a particular use.
>Also unlike in commodatum, grantee received possession.
>Grantee liable for dolus (but not negligence),
>Grantor's remedy for recovering property = interdict de precario, but J allowed the actio praescriptis verbis, converting precarium into an innominate contract.
164
Pacts - general
>Some agreements which fell outside innominate contracts but still needed a degree of legal recognition.
>They constituted informal bargains (or 'naked' agreements) known as pacts.
>Originally, pacts couldn't give ground of action but it could provide defence - Ulpian, Edict, book 4: "...a naked agreement gives rise not to an obligation but to a defence."
>Praetors extended 12Ts rule that an agreement not to sue for personal injury was effective to bar proceedings to a pact not to sue became a defence to any action.
>3 types of pacts known as pacta vestita which provided a ground of action emerged:
1. Subsidiary
2. Praetorian
3. Statutory.
165
Pacts - pacta vestita - list
1. Subsidiary
2. Praetorian
3. Statutory
166
Pacts - pacta vestita - subsidiary pacts
>Subsidiary agreements/terms added to the main contract.
>E.g. giving seller right of first refusal.
>Distinction made between contracts made temporaneously with contract and those subsequent to it.
>Pacts made after an interval weren't ground for action but could be used as a defence.
>Pact radically altered original contract then it could take effect as a substantially new agreement enforceable by either party.
167
Pacts - pacta vestita - Praetorian pacts
>Independent formal agreements (not attached to any contract) that were fully enforceable through an actio in factum granted by praetorian edict.
>Actio in factum - P alleged a set of facts which he hoped the praetor would regard as justifying a remedy.
>2 important types:
1. Constitutum (debiti)
2. Receptum.
168
Pacts - pacta vestita - Praetorian pacts - constitutum debiti
>Informal undertaking to pay a debt or to discharge an existing liability at an agreed time/date.
>Ulpian, Edict, book 27: "With this edict, the praetor promotes natural equity in that he protects a constitutum made by agreement on the ground that it is a serious matter to go back on one's word."
>Constitum debiti was the reinforcement of a debt, but not a novation as original debt remained.
>Constitum was sometimes used as a form of surety agreement, the promisor agreeing to pay someone else's debt.
>Popularity off fideiussio (with which J largely assimilated it) saw use of constitum as surety decline in late Empire.
169
Pacts - pacta vestita - Praetorian pacts - Receptum
>Name given to miscellaneous category of informal agreements enforced by the praetors where one party assumed a guarantee for a specific effect or event.
>Receptum arbitri = informal agreement to act as an arbitrator in a legal dispute. Once made, praetor could force arbitrator to act unless valid excuse.
>Another form of receptum = informal guarantees given by innkeepers, stablekeepers, or ships' masters concerning the safety of property left in their care. Remedy alternative to suing under quasi-delict. Under latter D's liability was responsible was for damage caused by his employees, but liability under receptum extended to damage/loss howsoever caused, apart from vis maior.
>Receptum argentarii = agreement by a banker to honour his clients debt to a 3rd part - fused with constitum debiti & fideiussio under J.
170
Pacts - pacta vestita - Statutory pacts
>During Empire, through imperial decree, a number of informal agreements became enforceable:
- pactum dotis (promise to give dowry)
- pactum donationis (promise to make a gift)
- compromissum (an agreement by 2 parties to submit to arbitration).
171
Quasi-contract - general
>One of J's 4 classifications of obligations.
>Group of obligations with little in common apart from some characteristics analogous to those of contract.
>Main case:
1. Negotiorum gestio
2. Condictio indebiti
3. Common ownership
172
Quasi-contract - negotiorum gestio - general
>'conducting of another person's affairs' without their consent.
>Law treats as if there was an agreement and contract between the parties.
>Attunes law and social ethics to each other.
>Encourages ethically desirable activities on behalf of others.
>Applicable whenever someone performed an unrequested service from another.
173
Quasi-contract - negotiorum gestio - position of the parties
>Gestor (person performing the service) = duty to complete what he had started, & to account for any proceeds or loss.
>Gestor = liable for negligence in performing service, SoC of BPF unless acted in emergency then only liable for dolus.
>If loss resulted from something the principal wouldn't have done, gestor = strictly liable, although could off-set losses against benefits accrued from the unauthorised acts.
>Principal's duties = accept performance & reimburse gestor for expenses.
174
Quasi-contract - negotiorum gestio - conditions for reimbursement
1. The gestor must have acted reasonably. Not only must service have been reasonable act but it must have also been reasonable for gestor to act rather than leaving it to principal or someone else.
2. The act must have been beneficial when done. Entitled to reimbursement if principal accepted/ratified the act. Gestor can't have just 'thought' it was beneficial, it must be in facts.
3. The act must have been done in the principal's interest. Gestor proves acted in another's affairs, not his own. Mistaken identity of principal = irrelevant. Act in interest of both the principal & gestor then no remedy unless could have not protected principal's interests without protecting his own.
4 Intentions. Act done with expectation of reimbursement in mind.
175
Quasi-contract - negotiorum gestio - remedies
>Remedy for principal = actio negotiorum gestorum = recover object & its fruits & compensation for any damages caused by gestor's carelessness.
>Gestor = actio negotiorum gestorum contraria = reimbursement of expenses.
176
Quasi-contract - negotiorum gestio - remedies - actio funeraria
>Special action available to anyone who incurred funeral expenses with the intention of being reimbursed.
>Lay against person legally responsible to bury deceased even if they expressly prohibited the burial.
>'Reasonable' expenses, but wouldn't lie if expenses so low they were insulting.
>Ulpian, Edict, book 25: "Funeral expenses are assessed according to the wealth or rank of the deceased."
177
Quasi-contract - condictio indebiti - general
>Unjustified enrichment.
>Concept of fairness.
>If a person mistakenly paid money or transferred a thing to another, both wrongly believing that the debt or transfer was owed, the transferor had the condictio indebiti for its recovery.
178
Quasi-contract - condictio indebiti - position of parties
>P had to show made payment/transfer and that debt/obligation wasn't owed.
>Not available if transferee in BF.
>If either party acted illegally/immorally not available.
>D had to return the thing transferred, or its equivalent, together with any resulting profits & accretions, but allowing for expenses.
179
Quasi-contract - condictio indebiti - analogous cases
>Other forms of condictio were allowed in analogous cases of unjust enrichment.
>Special significance = condictio sine causa = residuary action for any case of unjust enrichment not falling within standard forms of condictio.
>Highlights importance of general principal that persons who are unjustly enriched may not be able to benefit from their enrichment, even though they acted in GF.
180
Quasi-contract - common ownership
>If arose from agreement, the contract of partnership arose.
>In absence of agreement, e.g. gift/inheritance, the owners = in quasi-contractual position, the law implying certain rights & duties between them.
>Actio communi dividundo = action for dividing common property - same as in partnership.
>Special action for division of inheritance between co-heirs.
>Same as partnership rules, except that the death of a co-owner didn't end common ownership.
181
Quasi-contract - a common link?
>All amount to attempts to prevent unjust enrichment?
>Or preventing unjust loss?
>Arguably, these are 2 sides of the same coin.
>But is this not the fundamental object of the civil law? Therefore, failing to be recognised as a common link between quasi-contracts.
