General Features of Contracts

Question 1

General features of contract

Answer 1

consensus
capacity
causa
contracts affecting 3rd parties
Classification of contracts
degrees of liability

Question 2

Consensus

Answer 2

In classical law - agreement was essential for every contract
It was sufficient to bind parties in the consensual contracts
No less necessary than a formal regulation in other contracts
Needed to be a real agreement
could not be affected by metus, dolus or error

Question 3

Metus and Dolus

Answer 3

metus = consisted of threats of physical harm, death, enslavement, accusation on a capital charge, or of an attack on the chastity of the person threatened or a family member of his – threats of economic damage would not suffice
Dolus = trickery designed to induce the conclusion of the contract

Both had no effect on old OG civil law obligations
But
After introduction of actio doli, exceptio doli, excpetio metus and actio quod metus - in the last century of republic - they would affect all contracts

Consequences differ
if bonae fidei - may only reduce damages awarded to plaintiff
successful exceptio doli/metus completely defeated the plaintiff’s claim

Question 4

Error (mistake)

Answer 4

was a belief contrary to the truth - so prevented one giving real consent to the agreement
reached
it could be based on a wrong understanding or ignorance of the truth
effect = no real consent = invalid contract
There were a range of errors

Question 5

Different types of error

Answer 5

Error in negotio
error in persona
error in corpore

these 3 forms of error could affect all types of contracts
generally the law recognised no other forms of mistakes

Question 6

error in negotio

Answer 6

E.g.- A belief that by one party that he was making a sale – while the other thought he was entering into a contract of hire or receiving a loan
This would prevent any of these transactions from occurring

Question 7

error in persona

Answer 7

Ie where there is a mistake over the identity of the other contracting party
The person in error had to be factually mistaken over the identity of the person who he was negotiating with

Question 8

Error in corpore

Answer 8

Was a mistake over the thing that was the object of the contract
If principal object was identified – a mistake over some accessory was irrelevant
If there was error over quantity – Digest suggest that in J’s law – only if the party mistaken were at a disadvantage due to the mistake was the contract voided

Question 9

other error categories

Answer 9

generally law only recognized these 3
BUT for sales the Error in substantia emerged
Unsure as to what it exactly was from the varying texts Buckland gives the best overview of it
“that error as to the qualities did not affect the contract, unless it was such a thing that so widely differed from what it was supposed to be in a distinct commercial category”
“eg vinegar instead of wine, copper plating instead of gold plating”

Question 10

Impossibility

Answer 10

Contract had to be possible of performance
No obligation for the impossible (D.50.17.185)
There is no obligation for the impossible (D 50.17.185)
Initial impossibility of the contract – prevented contract being valid – showed the lack of any real intent to contract
Impossibility occurring after contract has been concluded is so risk specific to the contract it was to be determined on a contract to contract basis
Impossibility could be either physical or legal
Impossibility was objective, not subjective – if it was impossible for X but not for Y then it is irrelevant + contract is binding

Question 11

modalities

Answer 11

-Parties may have created a valid contract
But
they have may subject it to further qualifications – the most important being dies and condicio

Question 12

Dies

Answer 12

provision determining the time when the performance of one’s obligation would be liable to exacted – demandable
Rights – once created were permanent
So an obligation until a given period – dies ad quem – was legally impossible
dies a quo- was legally possible - postponement of performance to sometime later than the making of the contract
-It could be specific (dies certus) or unspecific (dies incertus)
Obligation could be performed before the date when it can be enforced – but cannot recover the value of one’s performance as being undue

Question 13

Condicio

Answer 13

Was a condition
More important than dies
In roman law the only true condition was that that is now normally styled as a condition precedent
-Ie made the contract dependent upon a future uncertain event
The value of the performance – if made before the condicio occurred – could be recovered by condicio indebiti – as it was uncertain that the event would ever occur – making the obligation enforceable
To be effective a condition had to be possible of realisation and not tainted by illegality or immorality

Question 14

capacity

Answer 14

An agreement would not constitute a contract unless the parties were legally competent to enter into the contract
In principle any person of full age and sound mind was competent to enter into any contract
But there are some exceptions

Question 15

Exceptions to the capacity rule

Answer 15

People Sui Iuris
Boy between 7 and 14
slaves
Filius
woman - to a degree

Question 16

People sui iuris - in regard to capacity for contracts

Answer 16

they (Ie independent people not in power of a family ascendant), an Infans ( one unable to speak – in later law, one under the age of 7), and a furiosus (a lunatic) were unable to create a contract – any contract created with them was void

Question 17

Boy between 7 and 14 in regard for capacity for contracts

Answer 17

A boy between 7 and 14 – could enter any contract wholly for his benefit – but otherwise needed his guardian’s authority to make the contract binding

In later law - a boy between 14 and 25 – if cura minorum – same position as boy between 7 and 14 – except required cura’s authority not a tutor’s

Early law – spendthrift (prodigus interdictus) could not enter contracts affecting his estate – later law – same position as that of 14 yr old boy

Question 18

slaves

Answer 18

-Had no independent capacity to contract at civil law
If a slave agreed to a contract with third party – his master could choose to take on and enforce the contract – but was not obliged to honour the transaction

Question 19

Effects of the rules of capacity

Answer 19

these rules would’ve acted as deterrents against people entering contracts with slaves or filiusfamilias

so as a result they would have little to no use in trade ot commerce

Question 20

Filius in relation to capacity for contracts

Answer 20

A filius is one in the power of their paterfamilias

• If over the age of 14 – had full legal capacity
• Any contractual rights he acquired went to his paterfamilias
• With the exception of contracts about his Peculium castrense or quasi-castrense
• He was liable in law to his contracts of any kind – but this was largely academic as long as he remained in potestae

Question 21

Praetorial intervention in capacity rules

Answer 21

He created actions called
actiones adiectitiae qualitatis
they were modifications of the formulae of ordinary, normal contractual actions, designed to fit the circumstances of the case in question
DID NOT overturn civil law
but imposed liability on a paterfamilias/ master on the contracts of these people, where and to the extent that he had expressly/implicitly required or authorised or ratified the transaction of the person, so accordingly he might be reasonably regarded as having himself incurred the risk of a certain degree of liability
these actions grouped into those that imposed full liability or only limited liability

Question 22

actiones adiectitiae qualitatis that create full liability

Answer 22

these were 3 actions that required direct authorisation from paterfamilias/ master

Actio quod iussu – where paterfamilias had authorised the transaction and gave full damage to the plaintiff

Actio instioria – where paterfamilias employed one to manage a business concern – he became liable on contracts made by one in connection with such business

Actio exercitoria – if a principal put one in charge of a trading ship (made him Magister navis), then he Is liable to contracts entered into by one in connection with the voyage

Question 23

actiones adiectitiae qualitatis that create partial liability

Answer 23

there were 2 of these that required only implied authorisation and can result in only limited liability for the master/paterfamilias

Actio de peculio et in rem verso – the paterfamilias was liable on non-delictal transactions entered into by his family subordinate to the extent of that person’s peculium at the time of judgement and/or as far as his own estate had derived benefit from the transaction

Actio tributoria - differed as it redressed conduct of the paterfamilias himself
it did not impose a liability in respect of his family subordinates’ activites
essentially an action to bring against paterfamilias if he is unfair when dividing an asset of his family subordinates to the creditors

Question 24

women in regard to capacity for contracts

Answer 24

those of full age had full contractual capacity
- except those married in Manu
- but they were tutela perpetua – so required their tutor’s authority
- by classical law this had become a ‘tiresome formality’
- this requirement disappeared in later empire
- however J retained the capacity preventing women from assuming liability for others (intercession)

Question 25

Causa

Question 26

contracts affecting third parties

Answer 26

General rule was that contracts had no impact relating to the passing of the benefit/imposition of duties, on third parties OUTSIDE of the families of the contracting parties There was a rule that prevented obligations becoming enforceable by/against the heir - BUT J abolished this rule

Question 27

Exceptions to general third party contract rule

Answer 27

The extent to the presence of these objections is highly debated Texts appearing to give third parties actions to enforce a provision made in his favour – all from late classical law – their authenticity has been questioned They grant an actio utilis to the third person – against one who took a thing with notice of his right The only general provision J made was lifting the ban on obligations to begin again with the contracting party’s heir Other than this exception, the general rule seemed to remain in J’s law – no enforceable benefit could be given to a third party by contract Similarly, no enforceable duty could be imposed on a third person by contract

Question 28

Classification of contracts

Answer 28

This could be done in a variety of different ways Bilateral v unilateral (imposed duties on: both parties v just one party) Or Bonae fidei (bilateral) or stricti iuris (unilateral) But both G and J classified contracts in the manner that they were concluded (agreed) - (G 3.89) + (J 3.13.2) - For they are contracted through a thing, or in words, or in writing, or by agreement

Question 29

Degrees of liability

Answer 29

In all contracts there were degrees of liability for both parties they must also avoid dolus and metus Different parts of liability include culpa custodia mora correality and simple solidarity

Question 30

Culpa

Answer 30

in contractual sense - was failure to show a degree of care required by the law in a given situation Culpa + diligentia varied inversely Diligentia being the degree of care + attention one was expected to show by law It essentially became negligence- non-intentional fault This had come about by the time of Gaius – prior culpa connoted positive misconduct – negligentia was negligence – this distinction was gone by G’s time

Question 31

Test for culpa - in classical law

Answer 31

In principle it was objective "did the conduct of D constitute a reprehensible mal or non-performance of his obligation? Was it his fault the contract was not properly performed?" where the standard that is to be expected is that of an honest man (bonus vir) BUT in J's law not as simple,

Question 32

test for culpa in J's law

Answer 32

we gain 3 different types of culpa culpa levis in abstracto culpa levis in concreto culpa lata

Question 33

culpa levis in abstracto

Answer 33

failure to show exacta diligentia essentially a failure to act as a bonus paterfamilias would have acted in the circumstances

Question 34

culpa levis in concreto

Answer 34

failure to show diligentia quam suis rebus failure to show in the matter at issue the same degree of care that the party concerned would show in his own affairs

Question 35

culpa lata

Answer 35

failure to show any care and comprised both culpable ignorance and recklessness i.e. - conduct without regard to its consequences same as dolus - apart from the aspect that no positive intent to cause that outcome

Question 36

General principles of liability in contract

Answer 36

In bonae fidei contracts – anyone who derived a benefit from the transaction was liable for culpa levis – normally in abstracto – but as seen above sometimes in concreto A party who was normally only liable for dolus – or culpa lata

Question 37

Custodia

Answer 37

used in differing senses in the texts sometimes denoted the duty of looking after a thing - implicit in diligentia requirements vs other cases - custodiam praestare represented a degree of liability where the party responsible for the for the custodia was liable to his opponent if he could not return a thing to him, that he had received from his opponent in consequence of his contract + could not establish that his inability to return it was due to a casus (a chance event) or vir maior (great force) Clear that a person subject to custodia liability could be sued on the contract if the thing he held was stolen while in his custody - Here it was him and not the owner of the thing who was entitled to sue the thief with the actio furti - he is also liable for loss of or damage to the thing caused by animals

Question 38

Mora

Answer 38

was failure to honour a legal duty at the proper time or place or on the proper manner failure had to be wrongful - person alleged of mora had to be at fault for its failure its existence was for the judge to decide

Question 39

Debitoris - debitor in mora

Answer 39

where the party due to perform wrongfully failed to perform what was due from him anything involved in the contract became at the debitors' risk bonae fidei contracts - he became liable for any interests on the sums payable to him + the fruits and accessions to the thing the creditor would have received if he had delivered the thing on time the mora was discharged on the grounds of equity – he offered the creditor all that was due to the creditor having no good reason to reject the offer OR the creditor waived his rights accruing from the mora

Question 40

creditoris - creditor in mora

Answer 40

here the person entitled to the performance (the creditor) did not accept the tender performance at the due time or place debitor became only liable for dolus - previously he had been for culpa anything to be delivered was at the creditor's risk creditor became further liable for any expense incurred by the debitor in looking after such a thing If debitor’s duty was to pay money – he could avoid Interest by depositing the sum at the court or a temple

Question 41

Correality and simple solidarity

Answer 41

contract could have many creditors or debitors intended that entitlement/liability should be jointly shared among them any of the parties entitled or liable could sue or be sued on the obligation for the whole of what was due, i.e. In solidum – why these obligations can be described as solidary

Question 42

solidary obligations - sub classification

Answer 42

further split into Corporeal obligations (where the bringing of the contractual action by/against one precluded/discharged the others ) vs simple solidarity Where only performance in full ended the obligation – bringing of contractual action against/by one does not preclude/discharge the others For both: Only one performance necessary/ was due Any circumstances that affected the obligation worked for or against all parties interested But circumstances which affected only an individual party concerned only that person and did not destroy the obligation as such

Question 43

Distinction between simple solidarity and corporeal obligations

Answer 43

Was the effect of litis contestatio - In classical law, a dispute over an issue in an action between one of those entitled and one who owed a performance – in a corporeal relationship – extinguished the obligation - J abolished this rule – provided that where there were several debtors, litis contestatio against one should no longer discharge the others – only full satisfaction of the obligation would do this