law of obligation Flashcards
(150 cards)
1
Q
vinculum iuris
A
‘legal tie’ between creditor and debtor
2
Q
in personam
A
made against or affecting a specific person only
3
Q
in rem
A
‘against a thing’ ie against property
4
Q
actio in personam
A
an action against a specific person, used when bringing an action for a breach of obligation, incurs compensation in damages
5
Q
res incorporalis
A
incorporeal things
6
Q
ius honorarium
A
‘magistrate law’, mainly created by the praetors, with the aim of supplementin, clarifying, and correcting the ius civile
7
Q
ius civile
A
‘civil law’ the body of law applicable to Roman citizens, with various sources including the twelve tables, juristic opinion, imperial decree
8
Q
when did natural obligations become a classification?
A
mid-2nd century AD
9
Q
stricti iuris
A
‘of strict right’; the formula in the action pointed towards a strict application of the law
10
Q
bonae fidei
A
‘of good faith’; formula in the action pointed towards a discretionary application of the law
11
Q
natural obligations
A
obligations emanating from contracts that were not legally enforceable but could have legal consequences
12
Q
natural obligation examples (2)
A
a master borrows from his slave,
a paterfamilias borrows from his son
13
Q
consensus ad idem
A
‘agreement about the same thing’
14
Q
even if no ambiguities, why could consensus not be achieved in a contract? (3)
A
- mistake
- fraud
- duress
15
Q
error in negotio
A
mistaken transaction
16
Q
error in corpore
A
error in subject matter
17
Q
error in persona
A
mistaken identity
18
Q
exceptio metus
A
‘the defence of duress’
19
Q
when did exceptio metus become valid to use
A
in the late Republic
20
Q
If a contract stricti iuris was made under duress, was it a valid contract?
A
yes, the contract was formally valid in archaic and pre-classical law
21
Q
actio metus
A
action brought against someone for an aggrieved party that had suffered loss as a result of duress
22
Q
actio doli
A
action against fraud
23
Q
when was exceptio dolis introduced
A
in the late Republic
24
Q
what was defined as ‘duress’?
A
if a party (or members of his family) were threatened with ‘serious evil’ unless he consented to the contract
25
what made an agreement actionable?
the existence of some ground, reason, or cause (causa) for enforcing the agreement
26
contra bonos mores
immoral
27
in mora
in delay
28
privity
a relationship between two parties that is recognized by the law; eg blood, or service
29
suspensive condition
a modality in a contract, stating that something could be delayed
30
resolutive condition
a modality in a contract, stating that something could be undone
31
contracts re
real contracts, 'contracts by a thing', meaning contracts arising from the delivery of a corporeal thing
32
mutuum
a unilateral and stricti iuris contract, consisting of a gratuitous 'loan' for consumption of something that can be measured and were consumable through use e.g. fungibles
33
nexum
a form of bond; the debtor bound himself by pledging his body as security for the payment of a debt
34
when did nexum cease to exist
by the late Republic
35
what is the difference between mutuum and commodatum
- ownership remains with the lender in commodatum, whilst it is transferred for mutuum
- mutuum is stricti iuris and unilateral, commodatum is bilateral and bonae fidei
36
actio furti
action against a thief
37
dolus
deceit/fraud
38
what was the standard of care of a commodatum loan if it benefitted the borrower most?
that of a very careful head of family
39
what was the standard of care of a commodatum loan if it benefitted both parties equally
that of the borrower's normal standard of care (expected of him in his own affairs)
40
actio commodati
action on the loan
41
actio depositi
action for a depositee's breach of duty
42
actio depositi contraria
action against expenses during a deposit (for the depositee to use)
43
depositum irregulare
a deposit of a fungible item (usually money) which included a transfer of ownership, with a duty to restore the equivalent on demand
44
difference between a mutuum and a depositum irregulare
a depositum irregulare was not intended to benefit the transferee - he was more a custodian than a borrower
45
sequestratio
a transfer of ownership of property by two or more persons in dispute over their rights
46
Pignus
'Pledge' consisting of a transfer of property as security by a borrower to a lender by way of mortgage
47
fiducia vs pignus
a transfer in fiducia required a formal conveyance (eg mancipatio) which was cumbersome
deprived the borrower of ownership of the thing being pledged
48
actio pigneraticia
action once a borrower has repaid debt against the lender's use of pignus
49
hypothec
a type of pignus; would pledge rights to a property to a lender in case the money was not repaid on time
the borrower retained ownership and possession
50
example of a stricti iuris contract
mutuum
51
example of a bonae fidei contract
commodatum
52
consensual contract features:
- bilateral
- bonae fidei
- commercial in character
53
what were the 4 types of consensual contracts
sale
hire
partnership
mandate
54
emptio venditio
sale
55
how was sale enacted before the 2nd century AD (2)
mancipatio
stipulatio
56
how was sale enacted after the 2nd century AD
through a contract of sale
57
Arra
'earnest money'
not necessary to the validity of contract of sale, but proof of intent and consensus
like collateral
58
what did Justinian decree re: writing and contract of sale
no agreement on essentials (ie price and subject matter) were legally binding until put into writing.
until that time, either party could withdraw
(although they forfeited Arra if it had been given)
59
two main agreements for contract of sale:
agreement on price
agreement on subject matter
60
when did the ruling that price (for a contract of sale) had to consist of money?
in the late classical period
61
three conditions of price in a contract of sale
1. the price must be money
2. the price must be genuine (not a sham)
3. the price must be certain, or at least ascertainable
62
if the price wasn't genuine in a contract of sale, what could it be considered?
a gift (donatio)
63
when a contract of sale is 'perfect', where does the risk shift to?
the risk of loss shifts to the buyer
64
if the object was damaged before delivery but after the contract of sale was made 'perfect', who bore the loss?
the buyer, even though he technically was not the owner until delivery
65
what were the four main duties of the seller before delivery
- to care for the property before delivery
- to deliver it with vacant possession
- to warrant against eviction
- to warrant against defects
66
in the absence of agreement about the time of delivery (in contract of sale), when was the expected delivery time?
at once, allowing reasonable time for ensuring that the property is in a deliverable state
67
when was a guarantee against eviction (in a contract of sale) created?
implied in classical law
68
stipulatio duplae
stipulation to sue for double the price as regards to valuable things if evicted after a contract of sale
69
before this stipulatio duplae, what protection did a buyer have against eviction?
none
unless done through mancipatio, in which case there was protection from the 12 tables
70
actio empti
action on the purchase
71
in which cases was an actio empti preferable to a stipulation
allowed for unliquidated damages to be recovered rather than a fixed sum
72
what did Aediles' edict say and what was it in reference to
in reference to contract of sale, particularly the duty by sellers to guarantee against defects.
all defects must be said before the sale
the seller is therefore liable for failure to disclose defects
applied to physical and character defects in slaves who were sold on the open market
73
actio redhibitoria
entitled the buyer to recover the full purchase price, with interest, on returning the slave to the seller
only if serious defects were discovered
that undermined the usefulness of the thing sold
74
when is it thought that the extension of Aediles' edict to all sales by Ulpian was?
Under Justinian
Ulpian was writing some 200 years after the edict
75
how much loss could be claimed through an actio empti?
the return of the purchase price, consequential loss, and interest (if applicable)
the general rule was that the measure was based on the buyer's interest in the thing sold
76
example of what a seller could sue for (under a contract of sale)
- failure to pay on time
- failure to accept delivery
77
what are the three types of hire that can be distinguished
- hire of a thing
- hire of services
hire of a piece of work
78
locatio conductio rei
hire of a thing
79
if there was a failure to agree on duration for a hire, what could happen?
either party could renounce at any time
80
what was a 'thing' that could be hired
a corporeal thing that could not be consumable through use
81
who was the conductor and who was the locator in a lease and hire agreement
locator - the person who owned something and rented it out
conductor - the person who hired the thing
82
an example of a thing that could be leased (locatio conductio rei)
property
eg a farm
83
bonus paterfamilias
gentle head of the household
a standard of care for obligations
84
if there is damage to a land that is being hired but due to reasons that were not the hiree's fault, who bears the risk?
the owner
85
actio locati
action available to the locator in a hire (aka the owner)
86
actio conducti
action available to the conductor in a hire (aka the hiree)
87
locatio conductio operarum
hire of services - the locator placed his services at the disposal of the conductor in return for payment
88
main legal difference between liberal pursuits and other services
liberal pursuits (such as philosophers, teachers in higher education) could not be hired
89
locatio conductio operis
where the locator places a thing with the conductor in order for the latter to do some work in relation to it
90
and example for hire of a piece of work
X hires Y to build a statue out of materials X possesses
91
what was the test of whether owner approves of what is made for them by the hiree (contract of lease and hire)
that of the 'upright man'
92
what was the Rhodian Law
(related to the hire of a piece of work):
if a cargo is jettisoned to lighten the load of a ship
the owners who have lost can sue the captain on their contracts
the captain may bring an action against the other owners whose goods have been saved
so as the distribute the loss proportionately
93
Mandate
a bona fidei contract made when a promisor gratuitously agrees to perform a service requested by another (the mandator)
eg to act as a guarantor in legal proceedings,
eg to appoint a business manager
94
could you pay for a mandate
no, otherwise it constituted as hire
however, an honorarium could be agreed, which allowed the mandator to pay the promisor, even if it was not legally enforceable that he should be paid
95
Ulpian's writings on the necessity for a mandator to have an 'interest' in what he is mandating is...
inconsistent
although maybe not if you considere 'apparent' interests
96
which standard of care applied to the performance of the request by the promisor?
before the classical period, the promisor was liable only for dolus
by the end of this era, the bonus paterfamilias standard had become the rule
97
explain renunciation in regards to a mandate
either party could renounce the mandate without liability before the promisor commenced performance
if the promisor's mandate could not be achieved by someone else, then the promisor was liable to an extent
both parties were liable if the mandate was renounced after the promisor had begun the performance
98
did a mandate end after death
yes
except under Justinian
99
Could a slave enter a mandate
no
100
societas
contract of partnership
101
what were the requirements of a partnership (6)
- physically possible
- lawful
- not immoral
not incompatible with good faith
each partner had to contribute to the common venture (eg via capital, labour etc.)
each partner had to be allowed a share in the benefits resulting from the partnership
102
what is assumed if the shares in a partnership have not been agreed in a contract?
that they are equal
103
what was the standard of care of a partner
pre-classical, that he act in good faith (ie avoid dolus)
later, he became liable for negligence. The standard applied being that expected of a man in his own affairs
104
if a partner incurred a loss, was that loss shared
no, only that partner was liable
losses were shared when no partner in particular was to blame
105
actio pro socio
'action for a partner'
could be a friendly suit to make minor adjustments
or a hostile action for breach of a partner's duties
106
what was the result of an actio pro socio
infamia and the partnership was terminated
107
what were the four types of partnership
- partnership for a single transaction
- partnership in a particular business
- partnership in general business
- partnership in all assets
108
what was a partnership in a single transaction
where the parties came together eg for a particular property
109
what was a partnership in all assets
eg whereby family co-heirs sometimes agreed not to distribute an inheritance but to preserve it intact for common enjoyment
110
did death end a partnership
yes
unless it was a tax-farming business,
111
in what ways could a partnership end (4)
- renunciation
- death
- loss of civil status
- poverty
or if its purpose was accomplished/became impossible to achieve
112
what are the three main types of verbal contracts as mentioned in Gaius' institutes?
- Dotis dictio
- iusiurandum liberti
- stipulatio
113
dotis dictio
the pronouncing of the dowry
114
Iusiurandum liberti
the oath of the freed man
115
stipulatio
a unilateral and stricti iuris contract consisting of a formal promise made in answer to a formal question
116
what were the drawbacks of using stipulatio (2)
- emphasis on formality
- both parties had to be present
117
what words needed to be uttered during the formal creation of stipulatio
- spondesne? (do you promise?)
- Spondeo (I do promise)
this was relaxed during the republic to include other words
further relaxation in the classical period when languages other than Latin came to be regarded as sufficient
118
who was ambiguity construed against in a stipulatio?
against the promisee (the person to whom the promise was made)
119
cautio
a written script to record that the question-and-answer for a stipulatio had taken place
120
Justinian's affect on the stipulatio
would allege that both parties were present if the stipulation was evidenced by a cautio which alleged their presence
121
condictio
remedy available for the payment of a specific sum of money/specific thing via stipulatio
122
actio ex stipulatu
remedy available for a stipulatio if the payment has not been specified
123
what are the three classifications of stipulatio based on its source
1. judicial
2. praetorian
3. conventional
124
judicial stipulatio
stipulatio originating from a judge
125
praetorian stipulatio
stipulatio originating from a praetor
126
conventional stipulatio
stipulatio that result from an agreement between parties
127
example of a judicial stipulatio
cautio de dolo
a promise by a party in the course of legal proceedings to restore a property without any fraud on his part
128
what was a classification of stipulatio (3)
- simple
- ex die
- conditional stipulations
129
simple stipulatio
where an obligation arose at one and unconditionally
130
ex die stipulatio
when an obligation arose at once, but could not be enforced until a certain day
eg 'when I die'
131
conditional stipulatio
when an obligation may not arise
eg 'If I leave Rome'
132
when did Innominate contracts acquire legal force
during the Empire
133
actio praescriptis verbis
remedy available to those entering an innominate contract
134
four main types of innominate contracts:
- transactio
- aestimatum
- permutatio
- precarium
135
transactio
the informal settlement of a legal proceeding in return for some benefit given/promised by the other party
136
aestimatum
a type of conditional sale in which the owner of a thing entrusted it to a transferee on a sale-or-return basis
137
permutatio
contract of exchange or barter
138
precarium
like a commodatum, but without a fixed period of hire
139
was a pact legally enforceable
no but it could constitute a ground for action
140
what were the 3 categories of pacts
- subsidiary
- praetorian
- statutory
141
subsidiary pacts
agreements r terms that were added to the main contract
142
did a subsidiary pact count if it was added after the contract had been made
no
143
actio in factum
an action in which the plaintiff did not allege an ius civile right but a set of facts which he hoped that the praetor would regard as justifying a remedy
144
example of a praetorian pact
constitutum debiti
145
what was constitutum debiti
an informal undertaking to pay a debt or to discharge an existing liability at an agreed time
146
three main cases of quasi-contract
Negotiorum gestio
condictio indebiti
common ownership
147
negotiorum gestio
the 'conducting of another person's affairs' without their authorization
eg your house is destroyed by storms in your absence, you neighbour rebuilds your fences, incurring an expense
148
standard of care for a negotiorum gestio
bonus paterfamilias
unless they had acted in an emergency, then they were only liable for dolus
149
what conditions did the gestor have to satisfy in order to be reimbursed
1. the gestor must have acted reasonably
2. the act must have been beneficial when it was done
3. the act must have been in the principal's best interest
4. intention to be reimbursed (not a gift)
150
condictio indebiti
'the recovery of a thing not owed'
right to recover money/thing that has been mistakenly transferred, thinking there was a debt owed
