TUTORIAL 5: CONTRACT II (duties of parties and breach of contract; latent defects and warranty of title) Flashcards
What was the original practical difference between bona fide contracts and stricti iuris, and what other element did they relate to regarding the contracts?
Stricti Iuris= usually unilateral, it meant that liability was strict and the obligation was absolute, even if there was fraud or duress.
Bonae fidei= bilateral, it meant that there were symmetrical or simultaneous obligations which were expected of both parties or neither, upon breach of the contract. He did not need to raise a defence of exceptio doli where he had been induced by fraud
What was the impact of bad faith being relevant in stricti iuris contracts and how did it change the difference with BF contracts?
When was it allowed?
In the middle of the first century bc, fraud and duress became relevant to the stricti iuris contracts, and it meant that liability was not strict for the contractor, they could raise an exceptio doli where they were induced by fraud eg in a Stipulatio.
This therefore allowed the defendant in a defence for a stricti iuris to plead his good faith eg if he was deposited an item under duress.
What is the practical difference between a sale through a consensual contract of emptio venditio or two stipulations?
- If the seller knew, and the buyer did not, that the property was defective, or was significantly different from what had been advertised, this gave the buyer in a contract of sale and purchase an action, even though the seller had done nothing to induce the buyers mistake.
- But if it had taken the form of two stipulations, the buyer had no remedy, provided he hadn’t stipulated for the non-existence of the defect. The seller had fulfilled his letter of promise and delivered the thing to the buyer. Stipulatio was initially stricti iuris before fraud or duress could be used, and the difference between stricti juris and bona fidei was relevant. Therefore, when fraud or duress was used to gain a Stipulatio, this could be raised by the plaintiff when he received property wrongfully explained.
- Therefore practically the aggrieved party had a claim either way
What was the responsibility of the ‘depositee’ in mutuum?
- Mutuum= borrower bound to return the equivalent of what he received, no matter what became of the thing itself. He was the owner, and the risk of loss or damage was on him. Liability was strict, and therefore he had to show
What was mora and why was everyone bound by it?
- Everyone was bound by Mora (delay). Liability was strict here as anything happening as a result of his delay, the seller would be liable for, as had he delivered on time its likely that there would not have been an issue.
What was Vis Maior and where wasn’t it applicable?
- Vis Maior being things like superior force or ‘acts of god’ which destroy or effect property and are out of the sellers control.
- Mora would trump a Vis Maior plea as the seller should’ve delivered on time
What was custodia?
Who was liable for custodia?
Custodia was defined in a more concrete way; in that a man was liable for a loss caused in a particular way (eg theft) whether or not he took reasonable care of it. However not liable if theft with violence because this was deemed to be vis maior.
What was the depositee in depositum liable for and what about pledger in pignus and borrower in commodatum?
- Most texts make depositee only liable for Culpa lata (gross fraud) because he gains no benefit from the object, and therefore his mere negligence is on the depositor for depositing with someone whom could not be trusted,
- Borrower in commodatum and pledgee in pignus were liable for culpa levis (in abstracto= objective standard expected) because they gained from the contract, and were expected to show due care for the item. They were originally liable for custodia, in that theft or
what’s the difference between culpa Levis and culpa lata, and what about culpa Levis in abstracto and in concreto?
culpa levis= slight fraud
Culpa lata= gross fraud
In abstracto was an objective standard expected of the borrower and pledger
In concreto= the failure of a man to exercise his habitual care (subjective to him)
What level of care was the seller expected of?
The standard of Bonus Paterfamilias-
What was the aedillician edict and what two actions existed under it?
(protection against latent defects)
The Aedilician edict: This represented a further development in the seller’s liability; those who sold at market were bound by the edict, which regulated market sales of beasts of burden and slaves. Sellers were required to display on a board a statement of physical defects and, in the case of slaves, other defects eg he was a liar or a runaway slave.
- It was under this edict that the claims of actio redhibitoria and actio quanti minoris were created; they imposed strict liability (ie not negated by good faith) on the seller for any latent defects arising, and within 6 months the buyer could reclaim the price of his slave or beast of burden, whilst within 12 months they were entitled to the warranty of the difference between a defective slave and a market value slave, as the defect would reduce the value of their property. It was important to put the buyer in the same economic position as he would be if the slave was not defective.
What was caveat emptor? from what point in the sale process did it apply?
“buyer beware”- the buyer accepts risks when he makes the contract AND the property to be sold is identified.
-It arose when the property was identified, because otherwise there was no deal that that particular property be conveyed and therefore the buyer was not required to accept that defective object.
What protection was there for the buyers against latent defects?
- Where the seller was in bad faith and knew that the buyer was mistaken (dishonest silence), or where he had stipulated a certain quality or lack thereof about the property, this was clearly fraud and the buyer had a claim of actio emptio if he found out about this afterwards, but if it was before eg seller knew slave was ill and he died after payment/ agreement but before delivery, buyer had defence of exceptio doli.
- Aedillician edict (at market place but eventually spread to all transactions under J)
- Buyer takes risk of deterioration of value, if the seller is in good faith. He therefore gets the prospect of a rise in market value before delivery but after contract is made (price and agreement on thing)
At what point was the title passed in sale?
The passing of title: An effect of the consequent conveyance of the property rather than of the contract. An essential point being that ownership did not pass on creation of the contract but upon delivery or conveyance. In addition, the price had to be paid too, in the time of Justinian for ownership to be passed, in order to protect the seller from the buyer’s insolvency, since he could assert title until it was paid.
What risks were there in sale and how did this differ to commodatum?
The passing of risk: Outside the contract of sale the rule is that the buyer takes the risk of accidental loss or damage. For example, we have seen that the borrower in a contract of commodatum was, at least in the law of J, liable for loss or damage only if it were caused by his own negligence (Culpa levis in abstracto) However, in sale it was different; The risk passed to the buyer as soon as the contract was complete even though he was not yet owner. Provided the seller looked after the thing with due care (bonus paterfamilias) between contract and conveyance, he could claim the price from the buyer no matter what happened to the thing, and the buyer had no claim if, without his fault, the thing was destroyed or damaged before conveyance.
-The seller would however be liable for mora, if an agreed date of conveyance was agreed and the property became defective or died after the expected date of delivery.
