Law of Contracts

Question 1

Types of contractual obligations

Answer 1

• Re (Handing over a thing)
• Verbis (By form of words)
• Litteris (By a special kind of writing)
• Consensus (Agreement without anything further)

Question 2

What mistakes voided a contract?

Answer 2

• Negotio
• Corpore
• Persona
• Substantia

Question 3

What is duress?

Answer 3

• A threatens B or member of his family with serious evil unless consents
• Exceptio Metus defence for unilateral contracts only

Question 4

Fraud

Answer 4

• Exceptio doli against party trying to enforce fraudulent contract
• Actio Doli for aggrieved party who suffered loss a result of fraud

Question 5

Causa

Answer 5

• Necessary to be existence of some ground for enforcing
• Formal = Form of agreement i.e. literis the writing
• Re = Handing over of thing
• Consensual contracts = Causa lay in necessity for recognising them as actionable
• General rule that agreement to perform immoral act = null

Question 6

Effects of impossibility

Answer 6

• At the time of agreement impossible = void

- Supervening = Still valid & enforceable as long as other party not one to blame

Question 7

Standards of care

Answer 7

• Custodia (Strict liability for all loss not be vis maior); gone late law
• Dolus: All answerable for intentional acts
• Culpa:
  o Lata (Not understand what everyone understands)(Gross negligence)
  o Levis in abstracto: Failure to show standard reasonable bonus paterfamilias exercises habitually in his own affairs
  o Levis in concerto; Failure to show diligence which person in question habitually exercises in his own affairs
  o Lata/ Levis distinction based on whether party benefitted from contract, though dispute over when
• Mora
  o Fails to fulfil duty at proper time then strict liability for all

Question 8

Stipulatio Basics

Answer 8

• Unilaterial, stricti iuris

- Essential there was correspondence between Q & A

Question 9

Formal stipulatio requirements

Answer 9

• Congruence in Q & A
• No substantial gap
• Emperor Leo 427AD Relaxation that any expression of intent = valid
  o Nich. = Made G’s list non-exhaustive
  o Riccobono = Removed need for a Q & A
• J. affirmed cautio but need to meet

Question 10

Mutuum

Answer 10

• Gratuitous loan for consumption
• Recipient gained dominium
• Duty to restore in kind
• Enforce via. Condictio Pecunaie (Money) or Condictio Triticaria (Specific thing)

Question 11

Commodatum

Answer 11

• Gratuitous loan for corporeal ting
• Returned in its slef
• Only gives detention
• Borrower duties
  o Return thing as implied or stated in contract
  o Return it as good as received
  o Liable for custodia
  o Use within term of contract
• Lender duties
  o Allow to have for time agreed
  o Indemnify him for any extraordinary expense
  o Indemnify him for damage caused by something he was aware of
• Actions
  o Lender – Actio Commodati Directa
  o Borrower – Actio commodati contraria

Question 12

Depositum

Answer 12

• Gratuitous giving of bare detention
• Depositee duties
  o Not to use
  o Restore upon demand
  o Dolus and culpa lata
• Depositer duties
  o Compensate depositee for expenses
  o Liable for damage aware that it might cause damage
• Actions
  o Actio depositi direct to depositee
  o Actio depositi contraria to depositer

Question 13

Pignus

Answer 13

• Security for a debt
• Classical period for pledgee to sell if debt not paid
• Pledgee duty
  o Restore when debt extinguished
  o Restore surplus to original debt if sold higher value
  o Culpa Levis in abstracto
  o Not use it
• Pledgor duties
  o Expenses
  o Indemnify for damage and mischief (If knew had mischievous quality)
  o Pay damages if in fact did not belong to him
• Actions
  o Pledgor – Actio Pigneraticia directa
  o Pledgee – Actio pigneratica contraria
  Consensual contrcaats
• Sale (Emptio Venditio)
• Hire (Locatio conductio)
• Partnership (Societas)
• Mandate (Mandatum)
  Origin of consensual contracts
• Expanding Roman economy in mid republic
• Commercial needs of vast empire required formless agreement

Question 14

Consensual contracts

Answer 14

• Sale (Emptio Venditio)
• Hire (Locatio conductio)
• Partnership (Societas)
• Mandate (Mandatum)

Question 15

Origin of consensual contracts

Answer 15

• Expanding Roman economy in mid republic

- Commercial needs of vast empire required formless agreement

Question 16

Emptio Venditio - The Thing

Answer 16

• In existence or capable of existing
• Sale of expected thing (Low risk)
• Sale of an expectation (High risk)
• In commercio 9Capable of being owned)
• Seller only liable for enjoyment not ownership
  o Res aliena = valid

Question 17

Emptio Venditio – Price

Answer 17

• Proculian view must be money prevailed over Sabinians view anything could be the price
• Price must be certain
  o G. said okay if 3rd party fixed
  o J. Said = conditional contract
• Laesio enormis (Land)

Question 18

Duties of Seller

Answer 18

• Take care of thing
• Myb. Custodia definitely culpa levis in abstratco
• Duty to deliver and give vacant possession
• Duty to guarantee againt eviction
  o By classical implied in all
  o Action empti
• Duty to guarantee against undisclosed defects
  o Patent (Not responsible)
  o Latent (Responsible)

Question 19

Aediles Edict

Answer 19

• Late republic
  o Actio redhibitoria
  o Actio quanti minoris

Question 20

Duties of buyer

Answer 20

• Pay at time agreed
• Accept delivery at appropriate time/ place
• Reimburse expenses

Question 21

Who bears loss if property is taken after sale but neither at fault?

Answer 21

• B pays whatever
• Strange that ownership not passed but risk does
• G says as gain accreditation must also bear loss
• Nich. Explains in terms of respective economic interests

Question 22

Hire

Answer 22

• Agreement on essential matters
• Subject matters
  o Thing; supplier = locator, recipient = conductor
  o Services; Supplier = locator, Recipient = conductor
  o Piece of land; locator = places order, conductor = does the work
• Remuneration
• Only detention transferred

Question 23

Duties of locator

Answer 23

• Make available use & enjoyment of thing for agreed time & purpose
• Compensate conductor for necessary expenses
• Actio locati available

Question 24

Duties of conductor

Answer 24

• Culpa levis in abstracto
• Pay rent agreed manner & time
• Return thing in original condition (reasonable wear tho.)
• Actio Conducti for failure

Question 25

Societas essential elements

Answer 25

• Each contributed his share as agreed
• Share profits/ losses as agreed
• Classical; liable culpa levis in concreto individually

Question 26

Mandate essential elements

Answer 26

• Where one requests another to do something for hire gratuitously and the other accepts
• Object must must be lawful
• Mandator must have interest of the thing to be done by mandatarius

Question 27

Mandate Actions

Answer 27

• Mandator – Actio mandate directa

- Mandatarius – Actio mandate contraria