consensual contracts Flashcards
types of consensual contract
there were 4 types:
1, emptio venditio (sale)
locatio conductio (hire)
societas (partnership)
mandatum (mandate
common characteristics of consensual contracts
they arose from mere agreement - no need for delivery
this is where concept of bona fides was most applied
Sale (emptio venditio)
was the most fundamental commercial contract due to its great influence on modern civil law and on common law
Formation of the contract of sale
the essential elements of the contract were that the parties agreed on a thing and a price
so:
agreement
the thing
the price
Agreement
No form required as long as agreement could be established
2 forms of agreement became common and important:
1) Arra
2) writing
Arra
it was an earnest - given at the conclusion of the contract to seal the bargain
In classical law - only evidential value - usually some minor token - a ring etc
in later classical law evidence that Greek practice influenced roman law substantially
This became to the extent that greek practice influenced roman law substantially
In breach of contract - could be treated as effectively liquidated damages
Writing as a form of agreement in sale
As with other contracts - stipulatio - it became practice to record a roman sale in writing
it became increasingly important as a probative instrument
Justinian’s provisions regarding arra and the writing
If parties agreed their contract should be in writing - then no contract until doc had been drawn up in a manner specified in the constitution
So either party could abandon from the agreement free from punishment
This provided that an arra had NOT been given
if purchaser withdrew he forfeited his arra
if seller withdrew he had to repay the buyer’s arra double
But J said no changes to unwritten sales
So in J’s law there were 2 types of sales
1) the unwritten sales - classical consensual rules retained full force
2) written sales - regulated by J’s enactment
The thing in sale
the sale could be of any right that the seller was capable of transferring to the buyer
BUT - typically was of a res corporalis
if contract was for use/enjoyment/services pf a thing - not a sale - but instead is hire
General principle - a typical sale was to transfer the ownership of a thing
the thing must exist at the time of the agreement - if not then no sale
+ identity requirement
Identity requirement of the thing in sale
This was the most restrictive requirement
the thing must be able to be identified
it had to be
specific - e.g. my slave caecillius
or semi-specific - part of specified mass
or one of a number of things - one of my horses etc…
COULD NOT be a sale of generic goods - “a horse” or “a slave”
Sale of some future thing was possible
Sale of some future thing
emptio rei speratae (sale of an expected thing)
Here ordinary principle applied – no thing = no contract
Here price will be proportionate to the actual yield
vs
Emptio spei (sake of an expectation)
If intention was buyer to take a risk – here this applies
Here same price will be payable whatever the yield
What is the price composed of for sale
there MUST be a money price
so permutatio (exchange or barter) was not sale
Sabinians disagreed
But this (proculian) view prevailed
G adopts it (G.3.141)
so does J (D.18.1.2.1
argument being if price was not money, then impossible to distinguish buyer from seller #
so law would be unworkable
as their duties and actions differ
Requirements of the money price in sale
must be fixed (certum)
it was only suitably fixed if it were known or immediately ascertainable at the time of agreement
enough for the price to be ascertained although obliquely identified - however much you paid for it, whatever in that cash box, etc… sufficed
One exception to this rule - third party to decide the price
otherwise parties free to fix their own price
but price must be seriously intended - not truly economic tho
Third party in relation to price in sale
This rule was disputed in classical law
and admitted by J
this is where the price was left to be fixed by a named third party
doctrine of laesio enormis
emerged in late law
its intended scope is uncertain - as it only appears in 2 constitutions concerned with individual cases
both of these being sales of land
here the seller was able to rescind the sale due to the fixed price being half the full value
Consent - (generally - but also as a part of sale)
was found as an element in relation to all contracts
roman law did not isolate and generalize these concepts
It involves the meeting of 2 minds - concurrence of 2 intents
If Buyer thinks horse A, and seller thinks horse B – neither party aware – there is no consent subjectively
Roman approach was that the contract was void if there was dissensus as to the res
Dispute as to the qualities of the res
- Variation as to jurist opinions
- Ulpian favours relief for a fundamental mistake of quality (D.18.1.9-15)
- Roman lawyers assume the subjective approach – a man may not profit from ignorance coming from his own carelessness
Defects of consent
there are 2 defects in consent that will vitiate a contract
1) no consent as to the whole or some part of the contract – error
- Error in negotio – one thinks a sale one thinks a hire etc = no contract
- Error in pretio (prices) and error in quantitate (quantities) – only partially operative – neither party can enforce contract at his own figure but can enforce it at the others figure
Or
- 2, there is consent but it has been such a way that the law will not enforce it -r dolus or metus
Effects of contract of sale
passing of title
passing of risk
Passing of title in sale
Not strictly an effect of the contract - but of the conveyance
In J’s law needed for the price to be paid and conveyance for effective title transfer
Passing of risk in sale
outside o the contract - rule is that the owner takes the risk of accidental loss or damage
BUT
rule for sale is different - risk passed to buyer as soon as contract was complete
contract had to be perfecta to pass risk
Risk in conditional contract only passed until condition satisfied - if thing destroyed before then, then no contract
Provided seller looked after the thing between sale and conveyance with due care - he could claim the price regardless
so if thing destroyed or damaged by no fault of the seller - buyer has no remedy against the seller
Broad principle as to when sale contracts are complete + effect on fruits
Generally said to be complete when nothing is left to be done except payment of the price and the conveyance of the thing
In regard to fruits
if between sale and conveyance of a sheep - it has lambs
Buyer has a right to the lamb
this is a right in personam
seller owns both sheep and lamb
but is under a duty to convey them to the buyer
Duties of the buyer in a sale contract
principal duties were to pay the price
- with interest if in mora
also had to take delivery for the thing at the appropriate time and place
- and also to compensate the seller for any expenses incurred in looking after the thing between contract and delivery
- if possibility thing may have to be restored to vendor
- he must show exacta diligentia in respect of it until that eventuality has passed
Duties of the seller in contract of sale
Care and delivery
Warranty against eviction
warranty against latent defects
Care and delivery of seller in sale
Seller is bound to deliver thing + care for it till delivery
- Was liable for culpa levis in abstracto -thomas
- Originally may have been liable for custodia
- but in J’s law required only to show care of a bonus paterfamilias – idea of a ‘prudent property owner’
- if disaster struck despite holdimg sufficient duty of care – then buyer cannot sure for failure to deliver
- otherwise it would make the obligation to deliver absolute and obligation of care strict
- For events of this kind the buyer will have to pay and get nothing
- But here the risk has to have passed to the buyer – where the contract has concluded
- obligation of delivery was not to pass ownership – just possession
Warranty against eviction duty of buyer in contract of sale
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
Development of the sellers duty to protect buyer from eviction
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
Duty of seller as to warranty against latent defects in sale
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
Actions for where defect not declared by buyer appeared
- 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
Pacts in sale
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
The pacts in sale that benefitted the seller
1) lex comissoria
2) In dierm addictio
3) Pactum protimesios
4) Pactum de retrovedendo
Lex comissoria
- 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
In diem addictio
- 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
pactum protimesios
- 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
pactum de retrovendendo
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
Pacts made in the buyers favour
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
the contract of sale normal remedies
- The bonae fidei actio venditi for the seller
- And the actio empti for the buyer
Hire- Locatio condicitio (LC)
large range of transactions accrued into this contract
Comprehensive contract for letting and hiring - in the broadest sense
Normally for money
3 types of LC
1) LC rei
2) LC operarum
3) LC operis
LC Rei
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
Duty of locator
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
Risk in LC Rei
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
Duty of the hirer
- 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
Relocatio
- 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
LC Operarum
- 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
Duty of the employer - conductor- in LC operarum
- Have to pay the agreed wage
- Liable for culpa – have to provide a safe system of work etc
Duty of the workman - locator in LC Operarum
- 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
LC Operis
- 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
LC Operis in classical law
- 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
Conductor in LC operis
- 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
locator in LC operis
- Had to accept the finished product
- And give there approval where necessary
- Pay the merces in the appropriate manner
Risk in LC operis
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
Formation of the contract
- 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.
actions in LC
- in all kinds of LC
- locator had the actio locati to enforce his claim
- conductor had the actio conducti to enforce his claim
Partnership, societas
- 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
