x. innominate contracts Flashcards
conditions for innominate contracts to come into existence
- performances must be synallagmatic (performance must have been promised in view towards receiving a counter-performance)
- one of the parties has already made performance
possible combinations of performances for innominate contracts
DO UT DES - I give, you give
DO UT FACIAS - I give, you do
FACIO UT FACIAS - I do, you do
FACIO UT DES - I do, you give
CONDICTIO CAUSA DATA CAUSA NON SECUTA
= CONDICTIO OB CAUSAM DATORUM: enables a party to a not legally enforceable agreement to reclaim a performance already rendered in case the other fails to make the counter performance as expected.
ACTIO PRAESCRIPTIS VERBIS
- action for the enforcement of innominate contracts
- BONAE FIDEI IUDICIUM
- depends on whether the claimant has already performed his contractual obligations
- other names: ACTIO INCERTI CIVILIS, ACTIO IN FACTUM CIVILIS.
PERMUTATIO
= exchange agreement
→ initially qualified by Sabinians as contract of sale, this view was replaced with Proculian opinion that it is an innominate contract
→ claim is established by procuring performance of the thing to the other party
aestimaterian contract
= A hands over goods to B with the agreement that B should sell them. If B succeeds in selling them, B has to pay A an agreed sum and he may keep the proceeds. If B does not manage to sell the good, it is to be returned to A.
→ ACTIO DE AESTIMATO
→ under certain circumstances, can be regarded as a SOCIETAS (common economic goal)
liability and assumption of risk of innominate contracts
- according to most similar nominate contract
- principle of utility: loss is borne by who had primary interest in conclusion of contract
