consensual contracts Flashcards

Question

Warranty against eviction duty of buyer in contract of sale

Answer 1

The fact that the seller is not the owner does not itself vitiate the sale He is required only to abstain from bad faith and to maintain the buyer in an undisturbed possession until usucapio becomes complete if seller knows he is non owner – but buyer does not - buyer will have remedy against seller – on grounds of bad faith – not no title - if seller is In good faith – buyer has no remedy unless evicted by owner Seller must guarantee the buyer against eviction - he has a duty to do this

Answer 2

started with actio auctoritatis – vendor who made a mancipatio was liable for twofold the price if he failed to defend his transferee against an assertion of title by another But if no mancipatio of a res mancipi or on the sale of a res nec mancipi - originally no contractual liability on the vendor for lack of title to the thing sold - and therefore no liability on the vendor for the consequence of a 3rd party asserting ownership of or other real right in the thing So became quite early practice for buyer to require the seller to stipulate for - a compensation - on the condition of the buyer being evicted from enjoyment of the whole or part - for res mancipi/more valuable res nec mancipi – often stipulate for double - this was a stipulatio duplae - for any other things and other cases – often stipulate for an indemnity - this was a stipulatio habere licere Further in 1st century of the empire - became incompatible with good faith if seller refused to enter the appropriate stipulatio - so buyer could force him into entering one with the actio empti BY time of J - sellers liability became implied into contract of sale itself - always enforceable by the actio empti - so no need to take the stipulatio habere licere anymore - but still the stipulatio duplae was taken SO by time of J – there were effectively 2 kinds of seller liability for eviction - 1st – the implied liability enforced by the actio empti - 2nd – express liability under verbal stipulatio duplae J did provide that whatever was recovered by the buyer should never exceed double price paid - But did become possible to exclude the implied liability if parties agreed -This was a term in contract – pactum de non praestanda evictione

Answer 3

original principle of civil law was caveat emptor seller was not liable for any defects in the thing unless he had by stipulatio expressly undertaken such liability BUT development of bona fides meant seller became liable for any defects he knew but did not reveal FURTHER - from aedilician edict seller were required to display on a board a statement of any physical defects

Answer 4

- he could be sued within 6 months – actio redhibitoria – actio for damages - could also use same action if within 2 months to rescind the contract - within 12 months -could reclaim diff between price paid and actual value of the thing – actio qaunti minoris In both these actions knowledge + ignorance of seller = irrelevant - liability is strict - but seller could exclude such liability if he made it clear his intention to do so - but he would still be liable for bad faith - also restricted to the slaves and livestock specified in the edict This strict liability was extended outside the slave market and by J to sales of every kind - so J allowed access to these actions for all sales - and also edictal remedies enforceable by the actio empti

Answer 5

neither parties could exempt themselves from dolus – like other contracts BUT they could by agreement vary the basic rights and duties arising under and the usual consequences of a contract

Answer 6

1) lex comissoria 2) In dierm addictio 3) Pactum protimesios 4) Pactum de retrovedendo

Answer 7

- clause that reserved to the seller the right to call off the sale if the price was not paid by a certain time if formulated Suspensively - contract would only become operative when the price was paid in time - so if the thing had been delivered and the buyer defaulted - seller could recover the thing by vindicatio VS If formulated Resolutively - the risk and ownership would both pass to buyer - seller could sue for the price with the actio venditi

Answer 8

- provision reserving the right to call off the sale (given to the seller) - provided that he received, within a given time, a better offer which the present buyer was not prepared to/couldn’t match Usual form was - nisi quis intra kalendas (Iunis) Proximus meliorum condicionem fecerit - unless someone shall have made a better offer before the first of (june) next The vendor exercised his right through actio venditi

Answer 9

- gave the vender the right of first refusal, to buy back the thing at the price offered of any offeror, where there was a resale by the purchaser - no questions over its formulation Vendor exercised his claim by actio venditi

Answer 10

Gave the seller the right to buy back the thing in given circumstances - The manner of enforcement is debated - Could be any of the - Actio venditi - Actio praescriptis verbis - Actio in factum

Answer 11

the pacta de retroemendo - It is the reverse of the pactum de retrovendendo - This gave the buyer the right to make the seller repurchase the thing - In the given circumstances 1) emptio ad gustum and 2) pactum displicentiae - These were forms of obtaining a sale on approval so that the buyer was not irrevocably bound until he had satisfied himself about his purchase - Pact was normally suspensive – risk remained with seller until day fixed or buyers approval - Was enforceable by the actio empti - Or by an action in factum

Answer 12

- The bonae fidei actio venditi for the seller - And the actio empti for the buyer

Answer 13

large range of transactions accrued into this contract Comprehensive contract for letting and hiring - in the broadest sense Normally for money

Answer 14

1) LC rei 2) LC operarum 3) LC operis

Answer 15

one party (locator) places a thing (moveable/immoveable) at the disposal of another (conductor) for his use or enjoyment So essentially letting out of a thing or land for a reward Transaction normally for only a specified time conductor only received detention of the thing No question of laesio enormis nor did J's provisions about arra or writing

Answer 16

To make res and normal accessories required for its use available for the conductor If he were to sell the thing - during the hiring - he has to ensure the other purchaser allowed conductor to continue his use/enjoyment till the end of the period had to keep the thing in proper repair for the period of the let Reimburse the conductor for any expenses incurred in maintaining the thing Liable for culpa in levis abstracto generally only entitled to agreed payment provided he gave enjoyment of the thing to the conductor

Answer 17

was with the locator - If thing were destroyed damaged or the conductor somehow prevented from enjoyment - And neither party at fault - Then conductor relieved of rent for the period of non – enjoyment - If he had already paid full rent in advance – could recover it by actio conducti

Answer 18

- Had to accept the thing - Had to show care, in relation to it, of a bonus paterfamilias - Also liable for culpa - Had to pay rent in agreed manner and time – security for rent often common - Had to return thje thing at the end of the letting in its original condition - With fair wear and tear excepted - He could not challenge the locator’s title to a thing - Zeno provides that – if he did – he would liable for double the value of the thing

Answer 19

- Was a creation of a new lease on the old terms - Not a renewing lease - The letting was ended if the thing was destroyed or ceased to exist without fault of either party - Also terminated by giving the conductor the title to the res - at locators discretion - Also terminated by gross misuse, or for agricultural land, by non-cultivation - Or by non payment of rent

Answer 20

- locator places his services (operae) at the disposal of the conductor - The letting out of services - the conductor paid - Workman being the locator - Employer being the conductor - May be difficult in principle to distinguish between this and the LC operis - But practically there was no difficultly - Due to wide scope of LC operis - And narrow scope of LC operarum – concerned only subordinate activities - Not all services could be hired – liberal arts could not be subject to LC – they were by munera sordida

Answer 21

- Have to pay the agreed wage - Liable for culpa – have to provide a safe system of work etc

Answer 22

- Have to do what was required of him diligently - Unless prevented from doing so by some factor outside his control - Here he was still entitled to his wages unless/until he found other employment - Death of employer did not end the contract – unless service was personal - Worker was still entitled to his wages from the estate - The death of the worker did end the contract - So effectively the risk was on the employer

Answer 23

- the locator places out a piece of work (opus) to be done by the conductor, - the work having always, it seems, a physical object—a slave to be taught, a house to be repaired, - the locator paid - unless there was directly said that the conductor should execute the work himself, sub letting was fine - but the principal conductor would be liable for the finished product

Answer 24

- locator had to provide the materials to be worked on - or for building – the site – otherwise would be a sale transaction - However where locator provides X and conductor finds X unsatisfactory so uses his own X – basic intent was that he use the X provided - So contract is still LC – it is L.C irregularis - In building if builder provides own materials – still a LC contract

Answer 25

- Had to ensure work was completed within agreed time – - If no time specified – then just had to be within reasonable time for completion of such a job - Was liable for culpa levis in abstracto

Answer 26

- Had to accept the finished product - And give there approval where necessary - Pay the merces in the appropriate manner

Answer 27

unless a special agreement otherwise - risk was on the locator once the work was complete or approved - where work was approved in stages – he had the risk of destruction of the work through vis maior or casus - he would have to pay the conductor the expense that the conductor occurred at the time of the event - and of failure to complete the work through defects in materials provided FOR EVERYTHING ELSE – risk on the conductor - He could not claim his merces as he had not produced the completed product and agreed result - So burden of proof = on conductor to show that product has not been produced for a reason outside his control – in a claim for his merces

Answer 28

- rules for the thing, sale and price essentially the same as those of sale as far as they could be applied - but the scope of the contract for services was limited by the exclusion of what we should call the professions and the liberal arts.

Answer 29

- in all kinds of LC - locator had the actio locati to enforce his claim - conductor had the actio conducti to enforce his claim

Answer 30

- it was an agreement between two or more persons to co-operate for a common purpose - earliest form involved a merger of all the assets of the parties - but it came to include any agreement of joint activity - making a profit was not an essential part of the common purpose

consensual contracts Flashcards

(54 cards)