Chapter 9 Revision sheet

Instructions:

This chapter should be revised in conjunction with chapters 3 and 10. An account of Roman civil procedure (in chapter 3) is important as it reinforces the point that Roman law was a law of actions. When revising this chapter, always keep in mind that for every action there had to be an appropriate formula. Reflect on the formula and its contents in each case. It may also be useful to use diagrams to explain certain rules of law. Furthermore, this chapter should be revised in conjunction with chapter 10 (the Roman law of delicts), since one event could give rise both to contractual and delictual remedies.

Aims:

The broad aim of this chapter is to provide an overview of the law of contracts. This chapter forms the bread and butter of many courses on Roman law and should therefore be studied in detail. A number of points need to be taken on board when revising this chapter. First, the relationship between contract, delict and the concept of the obligation needs careful consideration. Reflect on the importance of the concept of the obligation and its function [hint: look at actions in personam!]. In second place, reflect on the structure of the Roman law of contracts. Where do innominate contracts, pacts and quasi-contracts fit into the fourfold scheme? Why were these treated in this way? Finally, when revising each group of contracts, try to establish how these fit together and reflect carefully on the ‘essentials’ and the formula underlying each contract.

Important dates:

The Monarchy [Regal Period]: c 753 – 510 BC
The Republic: 509 – 27 BC
The Empire: 27 BC – 476 AD (West), - 1453 AD (East)

Important statutes mentioned:

Law of the Twelve Tables 451 – 450 BC

Overview:

• What is the essence of a legal obligation?
• How does the concept of the legal obligation relate to actions?
• The importance of the classification of obligations:
  • Ensure that you appreciate the relevance of the distinction between stricti iuris and bonae fidei contracts.
  • Ensure that you appreciate the distinction between Gaius and the Justinianic classification of contracts. What does this tell us about the scheme?

• General features – it is important to remind yourself that this section should not be taken to imply that the Romans had a general principle of contract. These are merely ‘common elements’ that affect most individual contracts in Roman law.
  • Consent: reflect on the meaning of consent in the context of the Roman law of contracts. Is consent merely an abstract concept or did the parties have to consent on specifics in each case? What additional significance was there to consent in the case of the consensual contracts? Is it possible to identify consent in the case of the quasi-contracts?
    • Mistake [read this in terms of consent]. Mistake is a factor that may [in certain circumstances] vitiate consent. In which circumstances would this be and what type of mistake?
    • Duress [read this in terms of consent]. Why would duress vitiate consent? Did the effect of duress depend on the type of contract [stricti iuris or bonae fidei]? [Reflect back on praetorian remedies]
    • Fraud [read this in terms of consent]. Why would fraud vitiate consent? Did the effect of fraud depend on the type of contract?
  • Causa [what does this mean in terms of the Roman law of contracts?] Reflect on pacts. Does a pact have a causa?
  • Capacity: the rules are largely shaped by age and mental faculties. Reflect on the ability of women and children in power to contract [see the chapter on status]. See also the institutions of guardianship and tutorship in this regard.
  • Illegality and immorality: these are self-evident.
  • Impossibility: ensure that you appreciate the distinction between initial and supervening impossibility and their effect on the contract.
  • Privity: this is a vitally important element of the Roman law of contracts. Reflect here on the Roman approaches to agency using the contract of mandate.
  • Modalities: these are best viewed in context. Look at the effect of suspensive and resolutive conditions on specific contracts.

• Consensual contracts
  • Sale [emptio venditio]
    • The token of sale [arrha] [notice that the Greek and Roman practice here seems to be slightly different]
    • The object to be sold [reflect here carefully on the classification of things in the law of property. Only things capable of private ownership could be sold. Philosophically interesting is the discussion about things not yet in existence and future things. Are you able to formulate a rule about these?
    • The price: the discussions about the nature of the price [money or money plus something else] are quite revealing about the Roman preoccupation with categories. Where does barter fit into the Roman scheme of contracts?
      • Risk [note here that it is a financial concept – one party carries the risk [i.e. absorbs the financial loss arising from the unforeseen and uncontrollable event] despite not being at fault.
    • Duties of the seller [reflect on these in terms of the formula of the action]. The most important development here is the liability for latent defects and its evolution from the edict of the aediles relating to the sale of slaves and cattle.
    • Duties of the buyer [reflect on these in terms of the formula of the action].
    • Variations through pacts: this is a very good illustration of the use of pacts in contract law. Revise this section in conjunction with the discussion of pacts. What sort of pacts are these?
  • Letting and hiring [locatio conductio]
    • Reflect carefully on the formula of the actions here, especially in light of the threefold subdivision within the contract.
    • Letting and hiring of a thing [l.c. rei]
      • Revise the duties of the lessor and lessee with reference to the formula of the action.
    • Letting and hiring of services [l.c. operarum]
      • What kind of services? Who is the lessor and who is the lessee under these circumstances?
    • Letting and hiring of the completion of a task [l.c. operis faciendi]
      • What kind of tasks? Who is the lessor and who is the lessee under these circumstances?
  • Mandate
    • Reflect carefully on the formula of the actions.
    • Why did mandate have to be gratuitous?
    • Revise the duties of the parties to the contract in terms of the formula of the actions.
    • Consider the relationship of the free agent under the contract of mandate with instances of a ‘servile agent’ using the actiones adiecticiae qualitatis. [Reflect here on the status of the slave and contractual capacity]
      • When revising these actions, note that they can be divided into two categories [iussum and its gradations as well as peculium and its gradations].
  • Partnership
    • Reflect on the formula of the actions and on the rights and duties of the parties flowing from these.
    • Notice that a condemnation under these actions gave rise to infamia. Why?
    • What types of partnership existed in Roman law?
    • How could a partnership be terminated?

• Verbal contracts
  • Revise dotis dictio and iusiurandum liberti in context.
  • Stipulatio
    • Revise this contract with reference to its formula.
    • What were the formal requirements for it and how were these progressively relaxed? Why?
    • Look specifically at the practical application of stipulatio in issues such as finance etc.

• Real contracts
  • Loan for consumption
    • Revise this contract with reference to its formula.
    • Why are the underlying ‘friendship’ bonds so important for this contract? [Reflect on the fact that the contract is stricti iuris]
    • The duty to restore is central to this contract. How did the Roman jurists interpret this duty? [Reflect on the classification of things].
  • Loan for use
    • Contrast this contract to the loan for consumption. What are the main differences? Why is it bonae fidei?
    • Reflect on the rights and duties of the parties in terms of the formula of the actions.
  • Deposit
    • The primary function of deposit is safekeeping. How does this manifest itself in the rights and duties of the parties?
    • Reflect on the ‘standard of care’ expected of the depositee [hint: look at possession]
    • Reflect on the rights and duties of the parties in terms of the formula of the actions.
  • Pledge and hypothec
    • We have already come across pledge before in relation to the so-called ‘contractual proprietary interests’. This discussion of pledge should be read in conjunction with that discussion.
    • An important basic fact to remember about pledge is that it is usually ancillary to a debt. The function of the pledge is secure payment of the debt.
    • Reflect on the rights and duties of the parties with reference to the formula of the actions.
    • What is the relationship between pledge and hypothec? Did the fact that the pledge creditor did not receive physical control of the object of hypothec affect his right?

• The literal contracts
  • Ledger entries. Notice the distinction between those that merely serve as evidence of the debt and those that create a debt.

• Innominate contracts
  • When revising these, focus on the action available in all cases, namely the actio praescriptis verbis.
  • The specific manifestations of these actions should be studied in conjunction with the ‘named contracts’ to which they are most closely related such as sale and barter as well as lease and precarium.

• Pacts
  • Reflect on the distinction between pact and contract under the Roman system. Also reflect on the distinction between pact and quasi-contracts as well as innominate contracts. Are you able to formulate a general rule in this regard?
  • Under which circumstances do pacts provide a ground for action rather than merely a legal defence?

• Quasi-contracts
  • Reflect on the differences between pacts, innominate contracts and quasi-contracts.
  • Is there an internal coherence to this category in Roman law?
  • When revising this part of the course, focus on negotiorum gestio and condictio indebiti.