Law of obligations

Question 1

What is the division of the law of things?

Answer 1

Property, succession and obligations

Question 2

What are obligations?

Answer 2

Refers to things that a person is owed. This is the realm of rights in personam. An obligation is a right. To every correlative right in personam there must be a duty. e.g. if a has the right that B shall give him the book then B has a duty to deliver that book

‘It binds someone to give, do or perform something’

Question 3

How is obligation classified by Gaius?

Answer 3

Arising from ex contractu
ex delicto
Justinian adds quasi ex delicto and quasi ex contractu

Question 4

How do obligations arise ex contractu and ex delicto?

Answer 4

Ex contractu- if A agrees to buy B’s book then B’s obligation arises ex contractu. A under the duty to pay while B under the duty to give the book

If A steals B’s book then an obligation arises ex delicto. A is required to pay B a penalty and B is entitled to that penalty

Question 5

What was the earliest form of contract/ obligation?

Answer 5

The earliest forms of obligation were most likely the simple debt (one man owed another a thing or sum). The presence or absence of an agreement was not a matter.

Question 6

What is an example of the simple debt and the lack of need for an agreement?

Answer 6

For example, if A mistakenly pays B money that he though he owed in the early law this was merely seen as a loan. However, in late classical law it was identified that A can reclaim the money from B because there is no contract because there is no agreement.

Similarly, if a loan has not been repaid in the early law it was simply seen that a debt was owed. In the later classical law it was seen that there was a breach of the agreement that the borrower had agreed to repay the money.

Question 7

What is the lack of importance of agreement exemplified by?

Answer 7

In the XII tables there were provisions for a formal act which embodied the essentials of an agreement. This was the stipulation. It was a formal exchange of questions and answers. It was not the agreement that gave the stipulation authority but the form. Thus, a debtor could not plead that there had been no agreement and he was mistaken. Conversely, if the form had been incorrect and the debtor said promittio instead of spondeo then the creditor could not plead that there had been an agreement in substance

Question 8

What were the two types of debt? Why were they important?

Answer 8

Promissory debt
Real debt
The origins of contract lie in these two types of debt

Question 9

How was a promissory debt created?

Answer 9

The formal act of stipulation

Question 10

What was a promissory debt?

Answer 10

It changed the status quo and was necessary for the development of commerce as the conveyance or payment of the thing needed to occur at a later date. There needed to be a way to bind the buyer or seller to the performance.

Question 11

How did promissory debt account for the performance of services?

Answer 11

In the case of building a house a modified stipulation needed to be used. The promisor promised to pay a penalty if he failed to perform the service. What was in substance a promise of service was formulated as a promise of payment.

Question 12

How was a real debt created?

Answer 12

Informal payment or transfer

Question 13

What was a real debt?

Answer 13

It restored the status quo- it was the return of something already received

Question 14

What were consensual contracts?

Answer 14

In certain type of transactions (sale and hire) a mere formless agreement was sufficient to bind the parties. Here, no form of words or writing were required and an agreement sufficed.

Question 15

What was the difference between the stipulation and real debt contracts and the consensual contracts?

Answer 15

Stipulation and real contracts were unilateral contracts

Consensual contracts were bilateral contracts

Question 16

What are unilateral contracts?

Answer 16

A unilateral contracts only creates rights in one party and a duty in another

Question 17

What is a bilateral contract?

Answer 17

Creates reciprocal rights and duties on both parties. For example, in a loan the borrower has a duty to repay the loan while the lender has a right to the repayment of the loan

Example is a consensual contract

Question 18

What are unilateral contracts enforced by?

Answer 18

Stricti iuris actions where there are no considerations of good faith. All of the earliest contracts are unilateral and see a subjection of the debtor to the creditor

Question 19

Why are unilateral contracts problematic?

Answer 19

Because one free man cannot be indebted to another and unilateral contracts cause the subjection of the debtor to the creditor

Question 20

Why is it dangerous for consensual contracts to be stated in two unilateral contracts?

Answer 20

The buyer could claim the thing even though he has not paid the price and the seller would have to bring a separate action to claim the price, with the risk that the buyer would prove to be insolvent

Question 21

What was the difference between stricti iuris and bona fide contracts?

Answer 21

Stricti iuris- issue was simply whether the defendant was liable in law- no consideration of fraud
In a bona fide action three words were added- ex bona fide- the judge was forced to look at the case in the requirements of good faith. Thus, any plea involving good faith could be raised before the judge

Question 22

How did the stricti iuris action develop?

Answer 22

Middle of the 1st century when bad faith was allowed to be relevant in a stricti iuris action. The defence of fraud (exceptio doli) was admitted into the edict
Once the exceptio doli had been admitted the difference became less substantial. Either way, the idea of good faith entered far more fully into the bona fide contracts

Question 23

What was the problem with contracting a sale with two stipulations?

Answer 23

In a consensual contract if A knew the thing he was selling was defective B had a cause of action on the basis of a lack of good faith.

Conversely, if a sale had been contracted using two stipulations then the buyer had no remedy as the seller had fulfilled the stipulation by delivering the thing.

Question 24

How does Gauis classify obligations arising ex contractu?

Answer 24

Re (transfer of the thing- includes the primitive real obligations)
Verbis (Stipulation)
Litteris (document)
Consensu (consensual contracts)

In order to have a valid contract they had to fit into one of these categories. For example, with the consensual contract there had to be an agreement on the specific thing and the fixed price price to be- could be no sale for a reasonable price

Question 25

Which were the formal and informal contracts?

Answer 25

Verbis and litters were formal contracts

real and consensual are informal contracts

Question 26

What were the advantages of forcing contracts into these categories?

Answer 26

Easy for Roman lawyers to work out the consequences of particular contracts by assigning it to a group

Fitted well into the system of actions- can identify the relevant actions

However, not all contracts fit into these categories- inominate contracts- a contract might not fall into these heading- no legal protection- gaps in the law

Question 27

Was a stipulation a contract?

Answer 27

Stipulation was a method of contracting rather than a contract. Any agreement could be made legally binding by using the stipulation form.

Question 28

What are the characteristics of real contracts?

Answer 28

They are stricti iuris and unilateral. They arise from the delivery of a res corporales. Actions for it are the condictio and stricti iuris actions

Question 29

What are the four real contracts?

Answer 29

Mutuum
Commodatum
Depositum
Pignus

Question 30

What is mutuum?

Answer 30

Loan for consumption and not merely use (e.g. loan of fungibles). It involved a transfer of ownership and required the borrower not to return the thing but to return its equivalent in quantity and quality

Question 31

Was there interest in mutuum?

Answer 31

Simply return of the thing. If you wanted to add interest it must be done in a separate stipulation

Question 32

How did dominium pass to the recipient?

Answer 32

Traditio of the thing

Question 33

What action could be brought to recover an amount transferred?

Answer 33

The condictio

Question 34

Was there any standard of care or risk?

Answer 34

There was no standard of care but there was risk. No standard of care as he was only required to return the equivalent in quantity and quality. However, there was risk as the risk of loss or damage was on the owner

Question 35

What is commodatum?

Answer 35

A loan only for use- the specific thing had to be returned in the same condition
It was simply bare detention as opposed to possession or ownership- borrower could not bring a vindicatio

Question 36

What were the requirements of commodatum?

Answer 36

Could only use the thing within the terms of the contract
Standard of care of a bonus paterfamilias because he benefited from it. If an unavoidable incident occurred he would not be liable provided he had acted as a bonus paterfamilias

Question 37

What if the thing was stolen while in the possession of the borrower?

Answer 37

Justinian’s law- the lender can either sue the borrower on the contract or proceed against the thief
The lender was obliged to upkeep the borrower on expensive upkeep of the thing

Question 38

What is the difference between mutuum and commodatum?

Answer 38

The type of thing transferred- fungibles in mutuum. However, non-fungibles could also be transferred uning mutuum.

Question 39

What is depositum?

Answer 39

Handing over a thing for safe-keeping and not for use. This was bare detention (not ownership or possession)

Bilateral contract

Question 40

What would happen if the thing was used in depositum?

Answer 40

It was seen as theft

Question 41

What were the requirements depositum?

Answer 41

Return of the original thing. There was no required time period it was simply whenever the transferor wanted it back. It was exclusively for the benefit of the transferor.

Question 42

What was the duty of care required?

Answer 42

Only liable for dolus and there was no greater duty of care. Although standard of care could be increased by a special pact in the contract

Question 43

What are the three variants of depositum?

Answer 43

Sequestratio- often when there was a dispute over a thing the sequester took care of it until it was settled and then restored the thing to one of them

Question 44

What was pignus?

Answer 44

Giving of real security through the transfer of possession
Protected by possessory interdict
The creditor could neither benefit or profit from it

Question 45

How did Gaius classify obligations contracted re?

Answer 45

Only considered mutuum- perhaps because they involve no transfer of ownership

Question 46

Why were real contracts relatively unimportant?

Answer 46

They had no commercial significance. For instance, depositum and commodatum were gratuitous

Question 47

What were the standards of care that the parties were liable for?

Answer 47

Always liable for dolus (fraud)
Culpa (fault or negligence)
Custodia (Idea of strict liability)

Question 48

What was culpa?

Answer 48

A failure to show the standard of care that was expected by a bonus paterfamilias. The conduct could be unintentional and there does not have to be a positive fault. Negligence is sufficient

Question 49

What are Justinian’s requirements for culpa?

Answer 49

Failure to show exacta diligentia which would be expected of a bonus paterfamilias
Failure to show the care one normally shows in his own affairs

Question 50

What was culpa Levis (slight fault) in abstracto?

Answer 50

Failure to show the exacta diligentia of a bonus paterfamilias

Question 51

What was culpa Levis in concreto?

Answer 51

failure to show the care that the individual typically shows when conducting his own affairs

Question 52

What is culpa lata?

Answer 52

gross negligence of fault. Similar to dolus except for the lack of a positive intention. Carelessness so great as to suggest bad faith

Question 53

What is custodia?

Answer 53

Similar to strict liability- liable for custodia for not returning the thing for whatever reason. It does not matter whether he had taken reasonable care to prevent it. However, he was not liable for theft with violence

Question 54

What is mora?

Answer 54

Mora means delay. Failure to honour a duty at the proper time or place was considered wrongful

Question 55

Was custodia important under Justinian?

Answer 55

It was confined to a few cases and had been replaced by liability for culpa

Question 56

What did Ulpian suggest about liability for culpa lata and Levis?

Answer 56

Suggested that it depended on whether or not the party in question benefitted from the contract. Thus, the depositee was liable for culpa lata while the commodatarius and pledgee in pignus only liable for culpa Levis

Question 57

What were the two formal contracts?

Answer 57

Verbal

Literal (written)

Question 58

What was the verbal contract?

Answer 58

Stipulatio
The earliest verb form was spondere
Dari spondes? Spondeo- ‘do you bind yourself to give?” I do bind myself’
Other verbs eventually came to be used during classical law provided that

• the answer immediately followed the question
• corresponding verb forms
• both parties present throughout
• the question and answer were spoken

Question 59

Why did the difference between an agreement and the stipulation degenerate?

Answer 59

The use of writing
Principle that a document incorporating the stipulatory phrase was a contract. After the constitutio antoniana the stipulatory phrase was added to the bottom of legal documents- growth of vulgar law

Question 60

What were written contracts like?

Answer 60

For example, the diary entries (Ledger) of the paterfamilias
Important to note that it was forgotten by Justinian’s time in favour of literal contracts

Question 61

What were the literal contracts under Justinian?

Answer 61

Written acknowledgement of perhaps a non-existent debt
If the creditor brought an action the debtor would have the difficult task of proving that the money had never been paid
Limitation period of two years for literal contracts

Question 62

What were consensual contracts?

Answer 62

Formless agreements where there did not need to be any forms of writing or words. Mere agreement was sufficient

Question 63

What were the types of consensual contracts?

Answer 63

Sale
Hire (locutio conductio)
Societas (partnership)
Mandatum (mandate)

Question 64

What was sale (emptio venditio)?

Answer 64

Generally concerned a res corporales but could also concern rights which the seller was capable of transferring to the buyer. ‘Transfer the ownership of the thing’
Important to note that services were not sale

Question 65

What were the requirements of sale (thing)?

Answer 65

Thing
- typically the thing sold was a res corporales, but it could also be a res incorporates such as a praedial servitude

• the thing must exist at the time of the agreement- problematic in the case of a goldsmith
• However the sale of an expected thing was possible such as next year’s crop. However, if the crop fails then the seller cannot claim the price because there can be no sale of a non-existent thing- making the contract void. Difference between sale of an expected thing and the sale of an expectation. If the parties decided that the seller should take the risk then it was the sale of an expected thing. If the buyer took the risk then it was the sale of an expectation
• The specific thing must be identified e.g. cannot be ‘a cask of wine’ it has to be ‘that cask of wine’

Question 66

Price

Answer 66

The price has to be fixed. There could be no sale for a reasonable price that is fixed upon subsequent dealings.

Price needs to be known at the time of agreement unless being fixed by a third party

There must be a money price. Therefore exchange and barter was not sale. The Sabinian’s disagreed with this. Proculians supported this stating that if there was no money price it would be difficult to distinguish buyer from seller

The price must be seriously intended and not mask a gift. In the later law there was a development that suggested that the seller was allowed to rescind the sale of a land if the price agreed was less than half of the agreed value of the land.

Question 67

Consent

Answer 67

Problems arise when real intent differs from the manifestation of that intent.
Subjective interpretation- there is no consent when the two differ. e.g. buyer has in mind horse A and the seller horse B
Objective interpretation- is that of the bystander which suggests that the parties were apparently agreed.
Defects of consent arising from error or dolus and metus (duress)- consent has been obtained in such a way that the law cannot enforce it.

Sale was a bona fide contract- judge should declare that the innocent party should not be held to his contract ex bona fide if there was dolus or metus- this includes both active and passive deception- e.g. the guilty party passively acquiesced in the other party’s self deception

Question 68

What errors can vitiate a contract?

Answer 68

Error in negotio 
Error in pretio 
Error in substantia
Error in corpore 
Error in persona 
Error in quantity

Question 69

What is error in negotio?

Answer 69

Error in the type of transaction. One party thinks they are entering into a sale and the other hire. There can be no contract. Important to note that to acquiesce in another’s mistake is bad faith.

Question 70

What is error in pretio?

Answer 70

The parties intend on different prices

Question 71

What is error in quantity?

Answer 71

Only partially operative when they intend on different quantities- neither party can enforce the contract on his own figure

Question 72

What is error in persona?

Answer 72

Mistake as to the identity of one party

Question 73

What is error in corpore

Answer 73

Mistake as to the identity of the thing hired/ sold

Question 74

What is error in substantia?

Answer 74

When the parties are agreed to the physical identity of the thing but not some essential characteristic e.g. bronze mistaken for gold. It must be shown that the other knew at the time of the sale that the quality was essential for the buyer.

Question 75

What are examples of locatio condictio?

Answer 75

Lease of land

Contract of employment

Question 76

What were the three types of locutio condictio?

Answer 76

Locatio rei
Locatio operarum
Locatio operis

Question 77

What is locatio rei?

Answer 77

Locator places the thing at the disposal of the conductor for his use or enjoyment. Conductor only acquires a right in personam against the locator and has no possessory interdicts against third parties.

Question 78

What is locatio operarum?

Answer 78

locator places his services at the disposal of the conductor

Question 79

What is locatio operis?

Locatio- means placing out

Answer 79

Locator places out a piece of work to be done by the conductor. The work was always a physical object e.g. a horse to be repaired.

Question 80

Were these distinctions made in the texts?

Answer 80

These distinctions are not made in the texts. It is likely that the jurists failed to arrive at a clear classification of the different types of hire

Question 81

What is the difference between sale and hire?

Answer 81

In the case of the goldsmith who is making the ring. If I provide the materials then it is hire. However, if the goldsmith provides the materials then it is sale. Conversely, if a builder builds on my land using his materials it is still hire

Question 82

What is societas (partnership)?

Answer 82

Societas was an agreement between two or more persons to cooperate for a common purpose. Every joint commercial venture took the form of societas.

Includes agreement to share expenses/ profits/ loss. However, it was also societas when one party was excluded from sharing any loss as their contribution was sufficient

Each party must make some contribution- skill, labour, money

The interests of both parties must be the same- in order to distinguish it from sale and hire. Although it was a bilateral contract.

The societas only created rights between the partners themselves

Question 83

How was the societas terminated?

Answer 83

Actio pro socio- could only take societas to court once it had been terminated

The brining of an action by either party immediately terminated the contract

Question 84

How was societas terminated?

Answer 84

One party could unilaterally terminate the contract at any time by unilateral renunciation. However, he could be called out by the actio pro socio if the purpose is to avoid loss

Also terminated by the death of a partner

Question 85

What is mandatum?

Answer 85

Mandatum existed where one person (mandatarius) agreed to perform a service gratuitously for the other at his request (mandator).

It was most likely a social obligation that had acquired legal force.

It was bilateral in the sense that the mandatarius performed the service while the mandator would indemnify him for his expenses.

Moreover, the mandatarius might have an interest in the performance of the service. The mandatarius could claim no reward.

If the mandate was in the interest of the mandatarius alone then it was not binding. However, if A gave B a mandate to lend C money and C failed to repay the loan, B could claim to have his loss made good by A. A was in effect acting as surety for C.

The mandate was extinguished with the death of either party

Question 86

What are innominate contracts?

Answer 86

These are contracts which cannot do not fit into any of the categories. They fill the gaps and solve uncertainties that are left by the regular contracts

Question 87

What are examples of innominate contracts?

Answer 87

• Sale for a reasonable price
• Aestimatum was an agreement for sale or return. If a man sells a thing provided to him by another party, he will pay an agreed sum back or he will return the thing
• permutatio (exchange)

Question 88

What happens when one side of the bargain had been completed e.g. the res has been conveyed?

Answer 88

If the res has been conveyed and the money had not been paid a condictio can be brought for the return of the thing on the ground that it had been given for a purpose.

Question 89

What was condictio to Justinian?

Answer 89

A claim quasi ex contractu as it is a claim for restitution rather than damages for non-performance. For example, if the transaction is an exchange of a horse for a cow and the horse has been conveyed, the owner of the horse through a condictio will secure the value of the horse.

In contrast, in a contractual remedy they will only obtain the value of the cow

Question 90

What is the definition of a condictio?

Answer 90

The condictio provides a partial remedy. It was confined to agreements which had been performed on one side and in which performance consisted of conveyance. It was confined to restitution and not performance.

Question 91

How did the nature of a lack of performance change under Justinian’s law?

Answer 91

In cases where there was non-performance on one side Justinian’s law stated that the actio prescriptis verbis could be brought- treated the agreement which was executed on one side as if it were a contract.

Question 92

What are pacts?

Answer 92

The original meaning of a pact is a compromise such as an agreement not to sue

Question 93

What was the purpose of these pacts?

Answer 93

It extinguished any obligation arising ex delicto

Question 94

What is a bare pact?

Answer 94

An agreement which does not fall into the category of any of the recognised contracts.

A bare pact brings about a defence but not an action.

However, in later cases the praetor gave actions on agreements which did not fall within the list of contracts. most important is constitutum debiti- agreement to pay a debt at a fixed time (e.g. mutuum). By suing on the constitutum the creditor could obtain the debt plus a penalty of one-half in addition.

Question 95

What are clothed pacts?

Answer 95

Later the praetor and the Emperor gave actions for agreements that did not fall into one of the list of contracts

Question 96

What is an example of a clothed pact?

Answer 96

• One example is constitutum debiti- an agreement to pay an existing debt at a fixed time. If, for example, a debt owing under a mutuum were due on 1 January, but at the debtor’s request the creditor allowed an extension of 6 months, this agreement would be constitutum
• By suing on the constitutum the creditor could ontain payment of the debt and of a penalty of one-half in addition. In contrast, the condictio which lay to enforce the original mutuum was the penalty of only one-third

Question 97

When did ownership pass in a contract?

Answer 97

Ownership only passed with the conveyance of the thing- not when the contract was made. In the law of Justinian it was also necessary that the price be paid or security given for its payment. This was to protect the seller from the buyer’s insolvency

Question 98

What is risk?

Answer 98

The rule is that the owner takes the risk of accidental loss and damage. For instance, the borrower in commodatum was only liable for loss or damage caused by his negligence- other risk laid with the lender.

Question 99

When did risk pass to the buyer?

Answer 99

Risk passed to the buyer as soon as the contract was complete even though the buyer did not become owner until the conveyance of the thing.

If the seller looked after the thing with due care in between the period of contract and conveyance he could claim the price in spite of what happened to the thing. Conversely, the buyer had no action against the seller if the thing was, without his fault, damaged or destroyed before conveyance.

If A buys a mare and she foals before conveyance the buyer has the right to the foal as well- right in personam so the seller must convey

Question 100

Why is this regarded as a defect of Roman law?

Answer 100

The separation of title and risk is seen as a defect in Roman law

Question 101

What are the duties of the seller?

Answer 101

Care and delivery
Warranty against eviction
Warranty against latent defects

Question 102

Care and delivery requirement

Answer 102

The seller was required to look after the thing until delivery. Originally, he may have been liable for custodia but under Justinian he only had to display the care of a bonus paterfamilias.

Question 103

Warranty against eviction

Answer 103

The fact that the seller is not owner does not vitiate the contract. Instead, he is required to abstain from bad faith and maintain the buyer in undisturbed possession until he acquires through usucapio. Thus, if the seller knows that he is not the owner and the buyer does not the buyer has a remedy on the seller’s bad faith rather than his lack of title.

If the seller is in good faith there is no remedy unless and until he is evicted by the owner- if the buyer knows the seller is not the owner and does not know who the owner is- complications as he can neither claim against the seller or resell

Question 104

Warranty against latent defects

Answer 104

Important to note that the seller was not liable for any latent defects in the thing unless he had expressed to take such a liability through stipulation. However, the development of good faith meant that he was liable for any defects of which he was aware and had not expressed.

Question 105

What was the Aedilician liability for latent defects?

Answer 105

Sellers were required to display on a board a statement of any physical defects. If a defect appeared which had not been disclosed the buyer can sue (within 6 months) using the actio redhibitoria- led to the recession of the sale.

If he sued within 12 months he could claim the difference between the price paid and the actual value of the defective slave or animal by the actio quanti minoris

Question 106

What were the actions available for latent defects?

Answer 106

Actio redhibitoria
Actio quanti minoris
If the seller was aware of any defects it was dolus and the actio empti could be brought

Question 107

What type of actions were these?

Answer 107

Liability was strict in both actions and the lack of knowledge of the seller was irrelevant

Question 108

What were the duties of the buyer?

Answer 108

Principle duties were to pay the price and to compensate the seller for any expenses he incurred in looking after the thing between contract and delivery.