ii. contracts

Question 1

limits of contractual private autonomy

Answer 1

• what is forbidden by law (unlawful) or goes against fundamental values (CONTRA BONOS MORES)
• declarations of intent meant as a joke or mead by legally incapable persons
• only moral or social obligation that is not legally binding: eg. donations in roman law, only valid when executed not when promised
• factually impossible obligations

Question 2

innominate contracts

Answer 2

= atypical Roman law contracts, that do not fit the strict typology: no NOMEN, no specific ACTIO. eg. barter agreements
but! Praetor can grant legal remedies by ACTIONES IN FACTUM.
If such a formula contains description of the atypical transaction which precedes the wording of the formula: ACTIONES PRAESCRIPTIS VERBIS

Question 3

PACTUM (PACTA)

Answer 3

= solitary agreement that is no legally enforceable and actionable, but they can still have legal consequences, like serve as basis for defence in court (eg. EXCEPTIO PACTI)

Question 4

modern law definition of contracts

Answer 4

In principle, every agreement entered into with serious intentions, which is legally permitted and factually possible is a legally binding contract and thus legally enforceable in court.

An agreement is legally enforceable if it yields a CAUSA (legal ground)

Question 5

four types of contracts depending on the way they come into existence

Answer 5

• consensual
• real
• verbal
• literal

Question 6

consensual contracts

Answer 6

= created when parties reach agreement (CONSENSUS)

EMPTIO VENDITIO (sale)
LOCATIO CONDUCTIO (lease, contract of employment, contract of work)
MANDATUM (mandate)
SOCIETAS (partnership)

Question 7

real contracts

Answer 7

= concluded by delivery of property (DATIO) from one party to another which is based on a typical, consensually assigned purpose (CONVENTIO)

MUUTUM (interest-free loan fro consumption)
DEPOSITUM (deposit)
COMMODATUM (gratuitous loan for use)
PIGNUS (real contract of pledge)

Question 8

verbal contracts

Answer 8

= created when parties express a promise in a certain established verbal formula.
The most important is the STIPULATION: ‘SPONDESNE? SPONDEO’

Question 9

casual stipulation

Answer 9

= a stipulation that mentions a specific legal transaction as the reason (CAUSA) for the obligation it creates. In these cases, the creditor has to prove CAUSA to enforce it in court.

Question 10

abstract stipulation

Answer 10

= a stipulation that does not mention a CAUSA for the resulting obligation. If a recipient wants to avail himself of an abstract stipulation with fraudulent intent, the defendant needs to plead an EXCEPTIO DOLI.

Question 11

actions resulting from stipulations

Answer 11

1. if a CERTUM (specific amount of money (CERTA PECUNIA) or a specific asset (CERTA RES) has been promised: CONDICTIO
2. if am INCERTUM (eg. FACERE) has been promised: ACTIO EX STIPULATU

Question 12

literal contracts

Answer 12

= concluded upon entry into the PATER FAMILIAS’ ledger (CODEX ACCEPTI ET EXPENSI), and it is mainly used to modify an existing obligation. The ledger is regard as a fictitious payment, based on it the PATER FAMILIAS can bring an ACTIO CERTAE CREDITAE PECUNIAE (CONDICTIO).

Question 13

BONAE FIDEI IUDICIA

Answer 13

= Applies to actions which instruct the IUDEX to assess mutual obligations of the parties EX BONA FIDE, meaning he has to consider the precise circumstances of each individual case in his judgement.
The majority of contractual claims contain a BONA FIDE clause, which enables the IUDEX to act on his own accord without the defendant pleading EXCEPTIO.

Question 14

IUDICIA STRCITI IURIS

Answer 14

Applies to actions which instruct the IUDEX to only ascertain and take into account the immediate circumstances essential for the case. Circumstances which stand in opposition to the claimant’s claim can only be taken into account if the defendant pleads formal objection (eg. EXCEPTIO DOLI).

Question 15

OBLIGATIO CIVILIS vs. OBLIGATIO HONORARIA

Answer 15

OBLIGATIO CIVILIS arises from IUS CIVILE.
OBLIGATIO HONORARIA origanates form a public official’s (especially praetor’s) law-making authority

Question 16

OBLIGATIO NATURALIS

Answer 16

= natural obligations that should be fulfilled, but a creditor cannot enforce them in court.
eg. when a slave enters into a contract

Question 17

unilaterally obliging contract

Answer 17

= imposes duties on one party and gives rights to another.
eg. promising someone a certain amount of money, or MUUTUM.

Question 18

bilaterally obliging contract

Answer 18

= each partner is in the position of a debtor as well as a creditor.
other terms for a bilateral relationship are reciprocal or synallagamtic.

Question 19

imperfectly bilaterally obliging contract

Answer 19

= both parties may become debtor and creditor, but not necessarily do so: one party always incurs an obligation while the other may do so only based on specific circumstances.
eg. agent is obligated carry out a task, and principal have to reimburse but only if agent has incurred any expenses.

Question 20

non-gratuitous (onerous) transaction

Answer 20

= if one apart has agreed to render a counter-performance as a consideration for the other party’s performance

Question 21

gratuitous transaction

Answer 21

= an obligation is incurred not with a view towards receiving a consideration.
eg. mandate

Question 22

DONATIO

Answer 22

= gratuitous grant of a pecuniary advantage.
- Under Roman law, promise of future donation is only enforceable when it has been given in a from of stipulation.
- LEX CINCIA forbids acceptance of donations over a certain value, but does not apply to close relatives.
- From ancient times, donations between marriage partners have been forbidden under IUS CIVILE.

Question 23

DATIO IN SOLUTUM

Answer 23

With creditor’s consent, debtor can discharge the debt by giving something else in lieu of what he originally owed (ALIUD PRO ALIO).

Question 24

DATIO SOLUTIONIS CAUSA

Answer 24

Another performance is rendered not in lieu what was owed but in order to be set off against a performance owed.

Question 25

SOLUTIONIS CAUSA ADIECTUS

Answer 25

The term for the third party who is authorised to accept payment when parties agree that the debtor may make performance to a third-party with debt-discharging effect. He may not sue the debtor for performance.

Question 26

contractual undertaking to perform the obligation of another

Answer 26

A third party enters into an agreement with the debtor to discharge the debt the latter owes to the creditor.

Question 27

assumption of debt

Answer 27

A third party enters into an agreement with the creditor to take the debtors debt upon himself.

Question 28

privative assumption of debt

Answer 28

= the party assuming the debt takes the place of the original debtor.

Question 29

cumulative assumption of debt

Answer 29

= the party assuming the debt takes upon himself the obligation to make performance in addition of the original debtor.

Question 30

two degrees of fault in contractual liability

Answer 30

1. DOLUS: debtor commits breach of contract knowing it will harm creditor. It needs malicious intent (DOLUS MALUS). Parties cannot agree to waive this liability. 2. CULPA: = negligence, debtor violates standard of diligence without intent to cause harm. gross negligence: CULPA LATA slight negligence: CULPA LEVIS

Question 31

CASUM SENTIT DOMINUS

Answer 31

= risk of accidental destruction is borne by the owner

Question 32

VIS MAIOR

Answer 32

= superior force, unforeseen and uncontrollable by humans, like natural disasters or attacks by armed gangs or natural death of a slave. Debtor is usually not liable.

Question 33

CASUS MINOR

Answer 33

= cases in which harm could have been avoided if debtor has taken precautions, such as placing damaged item under guard (CUSTODIA). If the contract does not oblige debtor to exert CUSTODIA, harm resulting from failure to guard asset is accidental and thus debtor is not liable.

Question 34

misperformance

Answer 34

= a debtor performs but in doing so violates contractual obligation (or duty to take care) ad thus causes some injury to creditor. eg. haulier transports column to destination but the column breaks on the road due to inexpert handling.

Question 35

warranty

Answer 35

= liability for defects regardless of fault. It offers certain remedies for defects of quality and of title regardless of whether the debtor knew or should have knew of it.

Question 36

warranty for defects of quality

Answer 36

1. redhibition: cancellation of contract and reversal of performances already made 2. reduction: lowering the price to the amount that corresponds to the reduced value of performance If debtor knew about the fault, this also gives right to demand compensation for losses caused by the defect.

Question 37

warranty for defects of title

Answer 37

= arises from a right a turgid party has to the object of the contract. - Under Roman law, this claim only arises after claimant has been successfully evicted - Person owing non-monetary performance is not obliged to grant title but 'quiet enjoyment of the property' - Debtor can demand return of purchase price or freed from further obligations to pay rent. - Jurist of classical period hold even the unsuspecting debtor liable for creditor's interest in the performance of contract.

Question 38

ending a contractual relationship

Answer 38

1. SOLUTIO: the contract has been fulfilled 2. CONFUSIO: creditor and debtor become united in one person 3. waiver: creditor's relinquishment of claim against debtor 4. COMPENSATIO: setting off one debt against another 5. NOVATION: substituting an existing obligation with a new one, the old expires 6. DELEGATION: permits fulfilment of obligation in a three-sided relationship

Question 39

waiver

Answer 39

Under IUS CIVILE, OBLIGATIO STRICTI IURIS can only be waived by a stipulation, which is called ACCEPTILATIO. However, the praetor also accept informal waivers (PACTUM DE NON PETENDO), which the defendant may enforce with EXPCEPTIO PACTI.

Question 40

requisites for COMPENSATIO

Answer 40

- similar in nature (eg. monetary claim) - maturity (both debts are due) - connexity (eg. both are due from the same obligation) - liquidity (the demand that is to be set off against original claim must be provable in court)

Question 41

unjust enrichment

Answer 41

1. condictions 2. claims for restitution not based on performance

Question 42

condictions

Answer 42

= someone who receives performance without CAUSA must make restitution. This can be enforced by CONDICTIO. Performance made in mistaken belief of an owed debt can be reclaimed by CONDICTIO INDEBTI.

Question 43

claims for restitution not based on performance

Answer 43

= someone profits from an asset belonging to another by other means than performance of an assumed obligation and the use of the asset is not justified by a CAUSA. Often result from unauthorised infringement of another property. Example: acquiring ownership of a firmly contented component by ACCESIO or processed materials by SPECIFICATIO. Roman law grants either an EXCEPTIO DOLI or a ACTIONES IN FACTUM.

Question 44

NEGOTIORUM GESTIO

Answer 44

= unauthorised management of another's affairs. Intermeddler is obliged to pass on all benefits obtained to the principal. In exchange ha can demand restitution of costs and damages incurred. May regard as an interference in affairs and intermeddler can become liable for damages.