Contract (tables) Flashcards

Question

written contracts (littoris) - other details

Answer 1

stricti iuris nature of the contract was important because its main function was to novate an existing contract - was obsolete by J's time due to the rise of banking - availability of the contract literis was the topic of a School debate - Proculians held that it was exclusive to cives but the Sabinians, while agreeing that only cives could be creditors, held that peregrines could be debtors where the transaction was a re in persona

Answer 2

littoris (written) - unilateral

Answer 3

loan for consumption of fungible goods - unilateral, stricti iuris

Answer 4

for money, actio certae pecuniae creditae, for other things the condictio certa rei (in J's law known as condictio triticaria) - ownership passed to the borrower

Answer 5

could charge interest (usurae) on it but that required a stipulatio (max rates of interest 1/12 of loan per month under TT, 6% for business and 4% for private loans under J) - associated with mutum was fenus nauticum/pecunia traiectitia (advance made for the purpose of a sea voyage, with the money to repaid only once the ship safely arrived at its destination)

Answer 6

re (real) - bilateral

Answer 7

loan for use

Answer 8

non-fungible goods (had to be handed back or otherwise disposed of at the end of the contract)

Answer 9

originally only protected by a praetorian actio in factum (which could still be used in classical law0 bt appears to have been accepted as a civil contract with bonae fidei actiones in ius in the 1st century of the Empire - to enforce his rights, the lender had the actio commodati directa, whether in ius or in factum; the borrowed had an actio contraria but a perhaps more effective right was to retain the thing (ius retentionis) until he had received anything due to him

Answer 10

borrower normally had to show the care of a paterfamilias (ie was liable for culpa levis in abstracto) but if the loan benefitted both parties (eg borrowing silverware for a joint party with the lender) his liability was modified to be culpa levis in concerto - unauthorised use of the thing made the borrower liable to any loss or damage of it (even that attributable to casus or vis maior) and if such use had been prohibited by the lender it was theft - if he used it properly, the borrower was not answerable for his inability to restore it due to vasus or vis maior, in all other cases he was liable eg for custodia - if the borrower incurred any exceptional expenses whilst borrowing the thing, the owner had to reimburse him, and would also be liable for dolus for any damage to the borrower caused by defects in the thing

Answer 11

re (real) - imperfectly bilateral

Answer 12

gratuitous delivery giving mere detention of the thing to the depositee

Answer 13

any movable thing in commercio

Answer 14

since only detention passed, depositum by a thief or one who held the thing under contract would be valid - if the depositee used the thing he was guilt of furtum, but since he didn't benefit he'd usually be liable only for dolus - the depository was liable for both dolus and clpa levis in abstracto, and for expenses occured by the depositee in looking after the thing or damage caused to him by the thing, and for such claimshe had the right to retain the thing - action against the depositee was actio depositi directa, and D would have damages and be infamis - action against the depositor was actio depositi contraria, and judgement didn't involve infamy

Answer 15

3 special variants on the basic contract of deposit: depositum miserabile (made in a time of stress eg fire, shipwreck and didn't give the depositor the choice of whom to entrust his goods to, but the depositee would face double damages if an action was brought against him), sequestratio (deposit made by 2 or more persons jointy, with the sequestor to restore it in specific persons, normally to the winner of a dispute over the thing - gave the sequestor interdictal possession - depositors had a special actio depositi sequestraria but the sequestor had no actio contraria), and depositum irregulare (deposit of money, on the footing that the recipient should restore an equivalent amount when asked - ownership passed to the depositee - some texts viewed this as mutuum but J accepted it as depositum, as unlike mutuum it was for the befit of the depositor)

Answer 16

re (real) - imperfectly bilateral

Answer 17

like taking out a loan where you give security (a pledge) which is returned when the loan is paid back

Answer 18

if the loan isn't repaid there's an agreement the pledge can be sold and the proceeds of that sale can repay the debt - the pledge does not change ownership when it is given to a lender - if it is stolen from the lender the original owner has the vindicatio - Roman law started to develop protections for the creditor - pledge lays over into property law and creates an ius in res aliena - bit of a classification issues as it’s both a contract and an issue in property law

Answer 19

if someone's insolvent the obligation is devalued

Answer 20

sale - an agreement whereby one party (venditor) undertook transfer of peaceful possession or enjoyment of a thing to another party (emptor) who in return gave him money - required agreement on the subject-matter and price

Answer 21

buyer had the actio empti against the vendor if he didn't meet his obligation of with explicit liability under the verbal stipulatio if there was a sum of money certain he'd had the actio certae pecuniae creditae - if the vendor was aware of a defect and hadn't disclosed it he was guilty of dolus and was liable in the actio empti - if defects with a slave became apparent after the sale or the dicta promissave proved incorrect (regardless of if the seller was aware of the defect), the buyer had 2 remedies: the actio redhibitoria (lay for 6 months to rescind the sale, so the buyer could return the slave and receive back the price) and the actio quanti minoris (perhaps only in respect of lesser defects which lay for a year after the sale, and by which the purchaser could recover the difference in value between the slave he was and the price he paid) - under the actio empti, the purchaser would be liable if he didn't take delivery, didn't pay or didn't reimburse the vendor for any expenses properly incurred

Answer 22

arra could be given at the conclusion of the contract to seal it (only had evidential value) - gradually it became standard practice to record the contract in writing and provide arra - in J's law there were 2 forms of sale, the unwritten sale, for the conclusion of which the classical consensual rules retained their full force, and the written sale, the conclusion of which was regulated by the emperor’s enactment - generally accepted that once the sale was perfecta (conditions had to be satisfied), risk in the thing passed to the buyer who would still be laible for the price if it deteriorated before delivery through no fault of the vendor (since ant accretions would go to the buyer, he accepted the risk and the owenrship) - however if the thing was fungible risk didn't pass until the particular quantity had been appropriated to the contract

Answer 23

consensual - bilateral bonae fidei

Answer 24

letting and hiring, usually for money - required agreement on subject-matter and the reward, and was operative once they were settled

Answer 25

depends on the form - in all kinds of locatio conductio, the locator had the actio locati to enforce his claim and the conductor had the actio conducti

Answer 26

consensual - bilateral bonae fidei

Answer 27

letting out a thing for a reward - conductor received detention of the thing usually for a specific time

Answer 28

usually a corporeal thing, but could be a usufructuary - in the cases of agricultrual land, the rent could be a fixed proportion of produce

Answer 29

first duty of the locator was to make the res and its normal accessories available to the conductor - if the locator was to sell or dispose of it during the hiring. he had to require of the purchaser that the conductor be allowed to continue to enjoy the thing - sublocatio was valid - if a conductor were evicted by the owner of the thing, his locator or heirs would be liable to him ex conducto for his full interesse - locator was liable for culpa levis in abstracto - if the thing were destroyed or damaged by no fault of either party, preventing the conductor from enjoying it, he was relieved of liability for rent and could recover rent paid in advance by the actio conductio - hirer had to accept the thing and show it the care of a bonus paterfamilias, and pay his rent on time, and return the thing on time - if the conductor didn't return it and challenged the locator's title to it Zeno provided he would be liable for double the thing's value

Answer 30

G discusses 3 cases where there's bount whether the contract is sale or hire: when land belonging to a municipum was let in perpetuity (became a separate institution under Zeno, emphyteusis), when gladiators were rented (G said each gladiator was the object of a condititional sale and conditional hiring, with whether he dies determining the contract - gladiatorial contracts suppressed in 5th century), and when a goldsmith was commissioned to make things out of his own gold (Cassisus thought there was the letting of the job and the purchase of the gold, but for G the view prevailed that, unless the employer provided the materials, a manufacturing contract was one of sale, and J adopted this solution) - there could be a tacit relocatio of the res

Answer 31

consensual - bilateral bonae fidei - locatio conductio

Answer 32

a contract for some work to be done or for the production of a specified result for reward, with the person commissioning the enterprise being the locator and the party contracting to preduce the results the conductor

Answer 33

object of the contract varied, from building houses, apprenticeships of youths/freed men/slaves, cleaning or repairing clothes, medical attention etc - unless ther was an express undertaking that the conductor himself should execute the work, sub-contracting was valid, though the principal conductor would be responsible for the finished product - locator had to provide the materials or the site for building (still valid eg if the goldsmith wasn't happy with the gold provided so used his own) - the merces had to be a sum of money but could be paid in a lump or in installments

Answer 34

could be no unreasonable witholding of approval (if the contract depended on approval to get payment) but approval obtained by fraud was viod - conductor had to ensure the work was completed within the agreed time, or if none was agreed within a reasonable time, and was liable for culpa levis in abstracto

Answer 35

risk was on the locator once the owrk was complete or approved and pro tanto where the work was to approved in stages; he also bore the risk of destruction through vis maior or casus (would still have to pay the conductor for the expenses incurred), and of failure to complete the work due to defects in the materials provided (vitia materiae) - for the rest, risk was on the conductor who couldn't claim his merces since he hadn't produced the agreed result, unless he could prove that the finished product wasn't produced for reasons outside his control

Answer 36

consensual - bilateral bonae fidei - locatio conductio

Answer 37

letting of one's services for reward, the workman being the locator and the employer the conductor

Answer 38

distinguished form locatio conductio operis faciendi as it concerned only subordinate activities, with the locator having no real independent responsibilies - originally regarded as letting himself (se locare)

Answer 39

employer had to pay the agreed wage and was liable for cupa so eg he'd have to provide a safe system of work etc - workman had to do his work diligently, with lack of skill (imperitia) ranking as culpa, unless prevented from doing so for something outside his control, in which case he was still entitled to his wages unless he found other employment - death of an employer didn't end the contract, but the death of the worker did

Answer 40

consensual - bilateral bonae fidei - locatio conductio

Answer 41

could either be effected by hiring space on the ship for voyage (conductio loci in nave) or by giving the master of the ship the task of conveying goods or passengers (locatio mercum vehendarum/vectorum veiendorum)

Answer 42

no distinction was made between passnger carriage and freight

Answer 43

no inherent liability of the shipper for damage to or loss of the goods of passengers or cosigners, other than that attributable to his own dolus or culpa - hence, the praetor introduced an actio furti in factum adversus nautas and a similar actio damni in factum for twofold the loss of damage which lay against the organiser of the voyage (exercitor) and subsequently required the master of the ship to undertake that goods would be safe (res salvas fore) while under this charge, the receptum nautarum - also under the lex Rhodia de iactu, if goods were jettisoned in stress of seas or a storm to save a ship, the loss was shared among all cosigners and the ship’s master - adjustment was made by the use of the actiones locati or conducti - person whose goods had been thrown overboard brought his actio locati/conducti against the magister navis to recover all beyond his own personal share of the loss and the captain would then proceed his own contractual action against each other person liable for their respective appropriate contributions

Answer 44

exemplifies the relatively undeveloped nature of locatio conductio compared to other consensual contracts

Answer 45

consensual - bilateral bonae fidei - locatio conductio

Answer 46

roman form of partnership, consisting in an association of 2+ in a common enterpreise with a view to their mutual advantage (didn't need to be pecuniary) - pooling of resources (capital, expertise or labour) for a joint purpose

Answer 47

could be anything - required an intention of association, affectio or animus societatis and was based on mutual trust - shares could vary between partners but later republican Servius Sulpicius and Cassius accepted the possible variation of shares, but only with specific arrangement

Answer 48

single set of rights and duties for the partners and a single actio pro socio - all partners had to have a share in any benefits accruing but partners could be exempt for liability for losses, but couldn't be liable for losses and precluded from a share in profits - in principle, for business partners, only the partner who made a contract could be sued upon it except in firms of bankers and firms of slave dealers - every partner was liable for culpa levis on the firm's business - capitis deminutio, bankruptcy (bonorum venditio), confiscation of property (publicatio) or death of a partner ended the societas, but it would be possible to make a new one (exception to the general principle of non-succession of heirs existed in partnerships of tax-farmers) - a societas could be ended by mutual agreement or even renunciation of the partnership by any single socii (but the renouncer would still be liable for damages if his renunciation was fraudulent) - a societas was also dissolved by the bringing of the actio pro socio and a partner condemned in the action became infamia - bringing of the actio pro socio only ended the partnership; for the dispostion of common partnership property, an adiudicatio in an actio communi dividundo was necessary - soceitas would end if the period agreed for its continuance exprired, if its object had been achieved (in societas unius rei) or if the destruction of common property made it impossible

Answer 49

4 principal forms: societas omnoum bonorum (complete pooling of all assets eg where co-heirs didn't divide an estate and enjoyed it in common - vested the assets of each in the partnership as a whole), societas omnium bonorum quae ex quaestu venuiunt (partnership of all assets dervied from business/professional activities but excluding acquisitions through gift, legacy, inheritance etc - in the absence of specification of any other form of partnership, a societas was deemed to be this kind), societas alicuius negotiationis (probably most common form, partnership for the conduct of a particular kind of business eg banking, slave-dealing), and societas unius rei (association for a single operation which need not be commercial eg neighbours combining to erect a party wall)

Answer 50

consensual - perfectly bilateral

Answer 51

gratuitous undertaking, at the request of another, to perform some service for him - person giving the commission was the mandator, the person accepting it the mandatarius

Answer 52

any service (lawful, possible, not immoral), originally unrenumerated but it became increasingly accepted that a person performing a mandate might recover an agreed honorarium by cognitio extraoridanria

Answer 53

nature of services might involve the madatary entering into legal relations with a 3rd party (eg negotiating the sale of something) - mandator assumed the duty of reimbursement for expenses which the mandatary might occur - if anything was acquired under the mandate, he had to transfer it to the mandator, including authority to exercise any rights of action which might have accrued to the mandatory through the mandate - he was always liable for dolus and, with the development of honorarium, might also be liable for culpa levis in classical law and his liability covered failure to perform no less than positive misfeasance - mandator was always liable for culpa levis - mandator had the actio mandati directa and the mandatary the actio mandati contraria, and condemnation in the actio directa brough infamia upon the peccant mandatary, but, at least usually, condemnation in the actio contraria wasn’t infaming - praetor introduced the actio institutoria which enabled the 3rd party to proceed against the principal of a business-manager with whom he'd contracted with - in J’s law, if the mandate was ended by the mandator’s death or revocation, the mandatary was granted an actio utilis on his own account against the debtor, and, once notice of the mandate had been given to the debtor, he could no longer discharge his obligation by payment to the mandator or could the latter release him from the debt, making the assignment fully effective - mandate could be ended by performance, renounced with impunity re integra or in other circumstances, supervening impossibility, or the death of either party but if the mandatary died his heir had to do anything he could to complete the contract and if the mandator died the mandatary was entitled to reimbursement for all he did while still in ignorance of the death

Answer 54

seems probable that its earliest form was the request to act as one's procurator in legal services, then it extended to other friendly services - became assimilated with procuratio (getting freedmen to do work for you) - if a mandatory exceeded his authority, eg bought for more or sold for less than the sum stated by the mandator, there was a school dispute over his right to reimbursement of any expenses incurred; Sabinians maintained that he hadn’t performed his mandate so was not entitled, but the Proculians (whose view prevailed) allowed him recovery if he bore the difference himself

Answer 55

consensual - iuris gentium, bonae fidei, imperfectly bilateral

Answer 56

legal transactions which did not fall into other classes (some were very close) but were none the less recognised as contracts - some were individually named but most weren't

Answer 57

they had in common the feature that, where one party to a bargain which didn’t rank as a proper contract had performed his side of the arrangement, he would have an actio praescriptis verbis if the other party didn’t reciprocate - in english legal terms, they were contracts made binding on executed consideration and they constitute the nearest approach the roman law made to a generalised system of contract - became enforceable upon part performance - a party who had done what he undertook to do could proceed by actio doli if the other refused to do his part or recover the value of what he had given by condictio - both remedies, however, only restored the status quo and the performing party’s interesse in the effecting of the transaction in full could be greater than the value of his own performance - hence, it became accepted that, in such cases, the part who honoured his undertaking should have an action against the defaulting party - the nature of this action is the root of controversy - some texts speak simply of an actio in factum, others of an actio civilis in factum or actio civilis incerti with a praescriptio

Answer 58

from his history and through the work of eastern law schools, it had, by J’s time, become accepted principle that, where there was an agreement which fell outside the normal categories of contracts but which corresponded with one of certain formulations, a party who performed his side of the bargain could have a civil bonae fidei actio praescriptis verbis if the other party failed to perform his part - the formulations, akin to recognised contracts, were: (a) do ut des (I give that you should give) which links with sale (b) facio ut facia (I do that you should do) which might be compared with mutual mandates (c) do ut facias (I give that you should do) and (d) facio ut des (I do that you should give) which both linked to locatio conductio

Answer 59

exchange or barter

Answer 60

once the contract became operative, the position of the parties was very similar to that of the parties to a sale, save that there was no question of laesio enormis - hence, the party who had delivered bore the risk in the undelivered thing and the rules relating to eviction and liability for defects were the same as in sale - as an alternative to the actio praescriptis verbis the party who had delivered could have a condictio to recover the value of his thing if the other defaulted on his delivery

Answer 61

Sabinians would've accepted exchange or barter as a form of sale but the Proculian insistence on a money price prevailed - consequence of the dispute is that knowledge of the regulation of exchange is uncertain until J’s time for whom permutatio was an innominate contract enforceable by actio praescriptis verbis - difficulty about treating it as sale would have been to discern, from the agreement, which party was vendor and which purchase - hence, for permutatio to be enforceable, it was necessary that the one party should have delivered his thing to the other and, here differing from the requirement in sale, that he should have given him ownership of it

Answer 62

arrangement whereby the owner of a thing handed it over to another person who was to restore it or an agreed price, usually within a specified time - in effect, a transfer of goods on a sale or return basis, the recipient being expected to find a purchaser rather than himself to buy it, and hopefully receive a sum larger than that which he would give the owner

Answer 63

appeared in the edict with a civil action, the actio aestimatoria

Answer 64

closely associated with sale (but recipient wasn't the intended ultimate purchaser) - though the recipient didn’t receive ownership on the delivery to him, he could give ownership to the eventual buyer, between whom and himself there was a normal contract of sale giving rise to all the rights and duties inherent in that contract - aestimatum is perhaps best analysed as a conditional sale, the condition being that the recipient should find a buyer; when he did, the thing became purchased by him for the sum agreed to be paid to the owner and thus he in turn sold it for what he could get from the purchaser - both parties liable for culpa, but risk was on the owner unless the recipient had initiated the transaction

Answer 65

originally permissive occupancy of land at the will of the owner, the holder (precario tenens) having interdictal protection against all except his grantor who could revoke the grant at any time - in developed law, it was a gratuitous grant of enjoyment of movables, immovables, even servitudes, and might give the holder only detention of what he enjoyed

Answer 66

no actions lay between the parties, hence the existence of the interdict de precario - holder was liable only for dolus until the grantor obtained the interdict against him, whereafter he would be liable for culpa and accountable for unused fruits etc - issue of the interdict ended the precarium as did the death of the holder but not that of the grantor - in J’s compilation, however, there are interpolated texts which give actiones praescriptis verbis in respect of precarium and that would indicate that, despite the lack of reciprocal obligation, precarium was regarded in the 6th century as an innominate contract

Answer 67

differed from loactio conductio in being gratuitous and from commodatum in that it gave the holder general enjoyment rather than use of a limited person

Answer 68

compromise of legal proceedings (actual, contemplated or even already decided if appeal was possible) in return for a money settlement or other reciprocal equivalent

Answer 69

compromise of legal proceedings - a claim might be abandoned on the terms that the other party should give or promise to give something or a defence might be waived in consideration for the retention of something

Answer 70

in classical law, it was customary to implement the arrangement with a stipulation for a penalty in absence of withdrawal of the claim or defence, whereupon redress and enforcement would be by condictio or actio ex stipulatu; if only the informal agreement was made, a party disappointed in his expectations originally only had the exceptio doli - but in J’s law, the informal agreement itself and the transfer or cession, as the case might be, were regarded as themselves imposing the obligation of compliance on the other party who could be sued by actio praescriptis verbis

Answer 71

any agreement which didn't come within a category of contract was a mere pact and not actionable

Answer 72

Twelve Tables provided that an agreement not to sue in respect of iniuria or furtum relieved the wrongdoer of liability and, in time, the defence of an agreement not to sue, the exceptio pacti conventi became generalised, being available in any action and inherent in bonae fidei iudicia, through the activity of the praetor - then pacts were admitted to vary obligations, notably in bonae fidei contracts, the so-called pacta adiecta; and, subsequently, the praetor made some pacts wholly independent of contracts enforceable by actio in factum, in effect unofficial contracts, a practice continued by some emperors: such pacts are styled pacta vestita

Answer 73

ancillary to recognised contracts and modified the normal obligations under them

Answer 74

if made at the time of the original contract, they were pacta continua or in continenti facta; if made subsequently to the contract eg to accept an alternative in lieu of the price in sale, they were pacta ex intervallo - pacta continua were regarded as terms of the contract and were enforceable by the relevant contractual actions in the case of bonae fidei transactions - pacta ex intervello could only be invoked as a defence, if necessary by an express exceptio pacti conventi, if the party in whose favour they were made was sued on the original obligation

Answer 75

such pacts had to be distinguished from agreements re integra to call of the contract (contrarius consensus) or an agreement to substantially modify a fundamental requisite of the contract eg to increase the price in sale, which had the result of discharging the first contract and substituting a new one: which was a matter of interpretation in the particular case

Answer 76

agreements, not subsidiary to any contract, in respect of which the praetor gave an actio in factum for their enforcement

Answer 77

iusiurandum voluntarium (on oath which either party to a disptue could offer their opponent, challenging them to swear the truth of their claim or defence - if he took the oath he was given the exceptio iurisirandi, but if P swore and D didn't P got the actio iurisiurandum) - constitutum debiti (informal agreement to pay a debt at an agreed time -if it wasn't honored on the agreed date, creditor had an actio de pecunia constitutia, with which there was a penal sponsio of 1/2 the original debt) - receptum argentarii (undertaking by a banker to be liable for any obligation of his client, including future obligations, enforceable by the actio recepticia, which didn't carry the penal element of the actio de pecunia constituta) - J fused the receptum argentarii into the constitutum debiti alieni - receptum nautae cauponis stabularii (undertaking required of the ship's master, innkeeper and liveryman that their customers goods would be safe, enforced by the actio de recepto, but, as by J's time ship master was relieved of liability where goods were lost casus, vis maior, through shipwreck or through pirate attack) - receptum arbitri (undertaking of a person to act as arbitrator in a dispute between 2+ others who themselves undertook to abide by the decision, but if the arbitrator refused or didn't decide the praetor enforced his undertaking extra ordinem by penal measures not by the grant of action against him)

Answer 78

a few pacts made enforceable by imperial provision in the later empire

Answer 79

Theodosius II made actionable an informal promise of dowry, pactum dotis; Justinian granted an action on an agreement to make a gift, pactum donationis - compromissum was the agreement to submit to arbitration which gave rise to the liability of the arbiter to act that the praetor enforced - unless the agreement was clothed in contractual form, the eventual decision of the arbitrator was not binding on the parties - but J provided that such decision should be binding if the agreement was made on oath and evidenced in writing or, where there was no oath, if the parties accepted the decision in writing or allowed 10 days to pass after the decision without demurring to it - subsequently, he repealed the provision relating to the oath but retained the remaining rules for the binding effect of an arbitrator’s decision