Law of Obligations

Question 1

Contracts re

Answer 1

Effective on delivery - enforced stricti iuris

Mutuum, commodatum, depositum ,pignus

Question 2

Contracts literis

Answer 2

Effective upon entrance into ledger - enforced stricti iuris

NOTE other contracts may be evidenced by writing but are not necessarily literis

Question 3

Contracts verbis

Answer 3

Effective on spoken words - enforced stricti iuris

Stipulatio: question and answer format, argued to be basis of all other roman law contracts. Agreement for payment/compensation separate contract

Question 4

Contracts consensu

Answer 4

Effective on agreement - enforced bona fidei

Emptio venditio, locatio conductio, mandatum, societas

Question 5

Mutuum

Answer 5

Gratuitous loan of use for fungibles. Agreement to pay back equivalent amount, otherwise needed separate stipulatio. Passes dominium, so transferee liable for risk of thing being stolen/destroyed/spoiled

Redress: actio certae pecuniae creditae for money; condictio certae rei for things

Question 6

Commodatum

Answer 6

Gratuitous loan for use. Obligation to return thing in same condition, allowing for fair wear and tear - must use thing in accordance with nature and within contractual terms. Imperfectly bilateral as lender must allow use for purpose and period agreed

Unauthorised use leaves borrower liable stricti iuris even if damnum fatale: also delictually liable through furtum usus

Borrower liable for loss/damage through dolus and culpa levis in abstracto (standard of paterfamilias diligentissimus)

Lender has actio commodati directa, borrower has actio commodati contraria for any expenses incurred, and potentially ius retentionis

Question 7

Depositum

Answer 7

Deposit of moveables on understanding they will be kept safe: depositee acquires detentio, obligated to return in same condition, fair wear and tear allowed.

Depositee liable for dolus not culpa (unless agreed) and use of thing renders them liable furtum usus. Depositor obligated to pay expenses.

Depositor has actio depositi, breach incurs infamia. Depositee has actio depositi contraria.

Question 8

Depositum miserabile

Answer 8

Emergency deposit, double damages available where breach

Question 9

Pignus

Answer 9

Right in security: debtor retains ownership, but possession of pledge transferred to lender by delivery. Bona fidei bilateral contract, both parties owe duty of care of bonus paterfamilias

Borrower liable for damages caused due to defects in pledge, lender entitled to recover expenses. Any profits offset against debt, on settlement pledge returned to debtor with any accretions. Mistreatment of pledge discharges contract and terminates pledge

Enforcement of lender’s duties by actio pigneraticia, dependent on satisfaction of debt

Question 10

Fiducia

Answer 10

Old form of security, upon conveyance of pledge debtor had no real rights. Could recover pledge upon default/satisfaction of payment. Could still be used alongside pignus

Question 11

Hypothec

Answer 11

Ownership and possession of pledge remains with debtor until actio hypothecaria used by lender on default. Creditors ranked in order of priority prior tempore potior iure

Question 12

Dolus

Answer 12

Fraud. Not available as of right until late Republic, then had exceptio doli and actio doli

Question 13

Furtum usus

Answer 13

Delictual theft by use, only liable if dishonest intent

Question 14

Culpa levis in abstracto

Answer 14

Lack of reasonable care at standard of diligentissimus paterfamilias

Question 15

Infamia

Answer 15

Loss of many civil rights, lost access to protections enjoyed by Roman citizens

Question 16

Error in negotia

Answer 16

Error as to nature of contract, type of transaction for consensus in idem NOT TO BE CONFUSED WITH MISTAKEN IUSTA CAUSA IN TRADITIO, voids contract

Question 17

Error in corpore

Answer 17

Error as to subject, contract void

Question 18

Error in persona

Answer 18

Error as to person with whom you are contracting, only void where relevant (eg employment, partnership)

Question 19

Error in substantia

Answer 19

Error as to quality of thing. Only present from late Classical, could invalidate bona fidei contracts where relevant. Eg where buy a virgin instead of a woman then no error, but where buying man instead of woman then error

Question 20

Metus

Answer 20

Duress - not available as of right for stricti iuris contracts until late Republic: could then use exceptio metus and actio metus. Effectively Praetorian delict, same application as force and fear in Scots law

Question 21

Emptio venditio

Answer 21

Transfer of peaceful possession and enjoyment of thing in return for money - no warranty of good title

Question 22

Emptio ad gustam

Answer 22

Emptio venditio satisfied upon condition that the buyer tastes it and likes it

Question 23

Arra

Answer 23

Token given as evidence of conclusion of contract

Question 24

Locus poenitentiae

Answer 24

Ability to withdraw from contract until it is in writing

Question 25

Certum est quod certum reddi potest

Answer 25

That is certain which can be made certain: although price not agreed at time of conclusion of emptio venditio contract, may still be set by independent mechanism where possible

Question 26

Permutatio

Answer 26

Innominate contract in which there is an exchange with no money, cannot distinguish between buyer and seller