Roman Contract Law15/05/2012 20:14
OBLIGATIONS
● Create a right/duty situation – D.44.7.3.pr
● Fall into one of two categories for Gaius or one of four for Justinian (he added
the quasi situations).
● They can be:
o Unilateral – obligation is on one side
o Bilateral – on both sides
o Stricti iuris – bound to what has been promise and nothing more
● Natural obligations were not enforceable due to a failure in legal technicality
e.g. action against a slave, or a son in power. Could not be recovered on
manumission or emancipation.
● They needed causa i.e. contract, delict, special right (as Gaius puts it), or the
quasi forms.
CONTRACTS IN GENERAL
● Four types of contract. Ten contracts in total. Rome had a law of contracts not
contract – sometimes things would fall through the gaps (see quasi-contract).
● All contracts require agreement. In consensual contracts that is what makes
them binding, but others have extra ingredients.
● Consensus – ad idem (about the same thing). Any ambiguity would render
the contract void.
● Causa – No obligation without causa - D.2.14.7.4. Legal basis for transaction,
or motive for transaction – sale, gift etc.
● Capacity – had to be capable of making contracts.
● Legality and morality – could not contract to do illegal or immoral things.
● Possibility – No obligation to do anything which is impossible – D.50.17.185.
Where something became impossible after the contract was made but before
fulfilled, it was valid but was not enforced
● Privity – only enforceable between two parties. No third party involvement.
● Other situations:
o Mistake – not necessarily fatal, but usually made a contract void.
▪ Error in negotio – mistaken iusta causa.
▪ Error in corpore – mistake as to the identity of the item being
sold. Mistake as to acceassory items would not be fatal.
▪ Error in persona – where one or both parties were mistaken as
to the other’s identity. This only mattered where identity was
relevant e.g. in partnership.
▪ Error in substantia – mistake as to the subject matter
● Cases of dishonesty:
o Duress – the contract was, in early law, technically valid. But the
exceptio and actio metus were introduced, which granted a remedy for
recourse.
o Fraud – as above, but the exception and actio doli.
VERBAL CONTRACTS
,The Stipulatio:
● Unilateral and stricti iuris consisting of a formal promise made in answer to a
formal question.
● Its use was probably quite limited at first but then it grew massively and was
used for almost anything.
● Alan Watson says that the stipulatio is the basis for the Roman theory of
contract (which many claim they didn’t have) and that ‘almost every other
contract is a derogation from stipulatio’
● Pugsey says it didn’t become all purpose until the Classical period. At first
was just for res mancipi.
● Although verbal, a cautio (written record) and witnesses were often used in
important stipulations. Note that this was never required and the verbal
stipulatio was always valid, but eventually became a symbol of the stipulatio –
legal fiction assumed presence of both parties.
Requirements:
● Formal question: do you promise (spondesne)? Formal response: I promise
(spondee). The stipulation would follow the question and the promise.
● Response had to be more or less immediate – passage of time could render
the contract invalid.
● The response had to take the same form as the question and could not add
fresh clauses.
Developments:
● Other verbs could be used. 6 others are mentioned in G.3.92. Riccobono says
that these 6 were not exhaustive, but Nicholas thinks they were.
● The Constitution of Leo in 472 said that a stipulation was valid whatever
words were used. Riccobono takes this to mean that there was no need for
the question/answer, while Nicholas says it just allowed for any verb.
● Justinian said that you didn’t need to have both parties present because the
use of a cautio would be a record of the stipulation. Riccobono says such a
document was conclusive evidence of the stipulatio, whereas Nicholas says it
was merely compelling evidence.
● Languages other than Latin could be used, including different languages in
the same stipulatio – so long as responses accorded.
Classifications:
● Judicial and praetorian – not really legal contracts but obligations to do or not
doing something, imposed by a judge.
● Conventional. By virtue of agreement
o Simple: arose immediately and unconditionally
o Ex die: arose at once but could not be enforced a certain day/event
o Conditional: based on a condition. Differs from ex die because it might
never arise.
,
Remedies:
● For a specific thing it was the condictio triticaria
● For a sum of money it was the condictio certae pecuniae
● Otherwise it was the actio ex stipulati (less convenient because you had to
state a basis of liability).
● Unilateral: only one party had a remedy. But note that many stipulations may
have been made in order to form one large transaction, and so there may be
many actionable remedies.
● Penalty clauses could be built in and sometimes these were hefty, but the
Romans thought this proper because contracts were important.
Stipulatio and finance:
● Novation of debt – renewed declaration of indebtedness made it easier to
prove and action in the instance of default. Note that a new stipulatio being
made would have to be slightly different from the old contract.
● Creation of surety
o Adstipulatio – debt already owed to one creditor was promised to
another creditor. One insured the other against loss.
o Adpromissio – guarantor. They were unattractive to creditors due to a
number of restrictions like not binding heirs etc.
o Fideiussio – emerged in late Republic and superseded the other two.
Did bind heirs. Joint and several liability. Suing one released others
under Justinian.
CONTRACTS LITTERIS
● A creditor would enter the existence of a debt into a ledger. The debtor had to
consent to this entry.
● Reason for existence is because, under Justinian, the burden of proof of the
existence of a debt was on the creditor.
● A records that B owes him X in his ledger. A money obligation is created.
● School dispute over whether non-Romans could do this.
● Presence of both parties not necessary/
CONTRACTS RE
Mutuum
● A loan of things for consumption i.e. fungibles. Things that are dealt in by
weight, number or measure – D.12.1.2.1.
● Note: strictly there is no loan because ownership passed.
● This was the standard money lending contract. Interest was 12% max during
the Classical period and under Justinian 6% for commercial and 4% for
private loans.
● The borrower had to restore the equivalent thing in size, number and quality.
● Where the loan was finance a ship or to train an athlete, it was only payable
on safe arrival of cargo or victory – in early times this meant unlimited
interest because the lender was bearing the risk.
, ● The duties of the borrower could be enforce by condictio. No contractual
duties on the other side because it was unilateral.
● The lender might be liable in delict if his good was defective and he was at
fault.
Commodatum
● Gratuitous loan of a corporeal thing to be returned after a period of time. If it
wasn’t gratuitous then it was hire, not commodatum. Usually made for a
specific purpose.
● Borrower only received custody, not ownership or possession. As there was
no title passage, a thief could be a lender with a court action.
● Duties of the borrower:
o use the property for agreed purpose (otherwise liable for theft),
o Even if the borrower consented to the purpose for which it was used
but it was not the agreed one, there was strict liability for damage.
o liable for any damage caused in mora (delay of return).
o Standard of care was custodia.
o Return the property, plus accretions, in substantially the same state as
it was in.
● If the good was stolen, the borrower had the actio furti, not the owner,
because he had a contractual claim. Justinian allowed the owner to choose
who he sued – borrower in contract or thief in delict.
● Duties of the lender:
o allow the borrower to borrow for the agreed time. If the borrower
misused the item he could recover it straight away.
o Reimburse the borrower for abnormal expenses
o No liability for negligence, only dolus – harm by known defects.
● Joint benefit:
o If the loan benefited both parties the standard of care was that of the
lender in his own affairs. If the loan was purely for the benefit of the
lender, the borrower was liable only for dolus.
o If the lender benefits, he is liable for defects he ought to have known of.
Demonstration of different levels of liability according to the balance of
interests.
● Remedies:
o Actio commodati – enforces the borrower’s duties.
o Actio commodati contraria – may be used by borrower if, for example, his
expenses were greater than the value of the item loaned.
Depositum
● Item handed over for safekeeping. This could not be land. Gratuitous –
otherwise hire.
● Bona fidei and imperfectly bilateral.
● Duties of depositee:
o Had to keep the thing safe, but was only liable for dolus. Sometimes dolus
would be equated with gross negligence.
● Duties of depositor:
OBLIGATIONS
● Create a right/duty situation – D.44.7.3.pr
● Fall into one of two categories for Gaius or one of four for Justinian (he added
the quasi situations).
● They can be:
o Unilateral – obligation is on one side
o Bilateral – on both sides
o Stricti iuris – bound to what has been promise and nothing more
● Natural obligations were not enforceable due to a failure in legal technicality
e.g. action against a slave, or a son in power. Could not be recovered on
manumission or emancipation.
● They needed causa i.e. contract, delict, special right (as Gaius puts it), or the
quasi forms.
CONTRACTS IN GENERAL
● Four types of contract. Ten contracts in total. Rome had a law of contracts not
contract – sometimes things would fall through the gaps (see quasi-contract).
● All contracts require agreement. In consensual contracts that is what makes
them binding, but others have extra ingredients.
● Consensus – ad idem (about the same thing). Any ambiguity would render
the contract void.
● Causa – No obligation without causa - D.2.14.7.4. Legal basis for transaction,
or motive for transaction – sale, gift etc.
● Capacity – had to be capable of making contracts.
● Legality and morality – could not contract to do illegal or immoral things.
● Possibility – No obligation to do anything which is impossible – D.50.17.185.
Where something became impossible after the contract was made but before
fulfilled, it was valid but was not enforced
● Privity – only enforceable between two parties. No third party involvement.
● Other situations:
o Mistake – not necessarily fatal, but usually made a contract void.
▪ Error in negotio – mistaken iusta causa.
▪ Error in corpore – mistake as to the identity of the item being
sold. Mistake as to acceassory items would not be fatal.
▪ Error in persona – where one or both parties were mistaken as
to the other’s identity. This only mattered where identity was
relevant e.g. in partnership.
▪ Error in substantia – mistake as to the subject matter
● Cases of dishonesty:
o Duress – the contract was, in early law, technically valid. But the
exceptio and actio metus were introduced, which granted a remedy for
recourse.
o Fraud – as above, but the exception and actio doli.
VERBAL CONTRACTS
,The Stipulatio:
● Unilateral and stricti iuris consisting of a formal promise made in answer to a
formal question.
● Its use was probably quite limited at first but then it grew massively and was
used for almost anything.
● Alan Watson says that the stipulatio is the basis for the Roman theory of
contract (which many claim they didn’t have) and that ‘almost every other
contract is a derogation from stipulatio’
● Pugsey says it didn’t become all purpose until the Classical period. At first
was just for res mancipi.
● Although verbal, a cautio (written record) and witnesses were often used in
important stipulations. Note that this was never required and the verbal
stipulatio was always valid, but eventually became a symbol of the stipulatio –
legal fiction assumed presence of both parties.
Requirements:
● Formal question: do you promise (spondesne)? Formal response: I promise
(spondee). The stipulation would follow the question and the promise.
● Response had to be more or less immediate – passage of time could render
the contract invalid.
● The response had to take the same form as the question and could not add
fresh clauses.
Developments:
● Other verbs could be used. 6 others are mentioned in G.3.92. Riccobono says
that these 6 were not exhaustive, but Nicholas thinks they were.
● The Constitution of Leo in 472 said that a stipulation was valid whatever
words were used. Riccobono takes this to mean that there was no need for
the question/answer, while Nicholas says it just allowed for any verb.
● Justinian said that you didn’t need to have both parties present because the
use of a cautio would be a record of the stipulation. Riccobono says such a
document was conclusive evidence of the stipulatio, whereas Nicholas says it
was merely compelling evidence.
● Languages other than Latin could be used, including different languages in
the same stipulatio – so long as responses accorded.
Classifications:
● Judicial and praetorian – not really legal contracts but obligations to do or not
doing something, imposed by a judge.
● Conventional. By virtue of agreement
o Simple: arose immediately and unconditionally
o Ex die: arose at once but could not be enforced a certain day/event
o Conditional: based on a condition. Differs from ex die because it might
never arise.
,
Remedies:
● For a specific thing it was the condictio triticaria
● For a sum of money it was the condictio certae pecuniae
● Otherwise it was the actio ex stipulati (less convenient because you had to
state a basis of liability).
● Unilateral: only one party had a remedy. But note that many stipulations may
have been made in order to form one large transaction, and so there may be
many actionable remedies.
● Penalty clauses could be built in and sometimes these were hefty, but the
Romans thought this proper because contracts were important.
Stipulatio and finance:
● Novation of debt – renewed declaration of indebtedness made it easier to
prove and action in the instance of default. Note that a new stipulatio being
made would have to be slightly different from the old contract.
● Creation of surety
o Adstipulatio – debt already owed to one creditor was promised to
another creditor. One insured the other against loss.
o Adpromissio – guarantor. They were unattractive to creditors due to a
number of restrictions like not binding heirs etc.
o Fideiussio – emerged in late Republic and superseded the other two.
Did bind heirs. Joint and several liability. Suing one released others
under Justinian.
CONTRACTS LITTERIS
● A creditor would enter the existence of a debt into a ledger. The debtor had to
consent to this entry.
● Reason for existence is because, under Justinian, the burden of proof of the
existence of a debt was on the creditor.
● A records that B owes him X in his ledger. A money obligation is created.
● School dispute over whether non-Romans could do this.
● Presence of both parties not necessary/
CONTRACTS RE
Mutuum
● A loan of things for consumption i.e. fungibles. Things that are dealt in by
weight, number or measure – D.12.1.2.1.
● Note: strictly there is no loan because ownership passed.
● This was the standard money lending contract. Interest was 12% max during
the Classical period and under Justinian 6% for commercial and 4% for
private loans.
● The borrower had to restore the equivalent thing in size, number and quality.
● Where the loan was finance a ship or to train an athlete, it was only payable
on safe arrival of cargo or victory – in early times this meant unlimited
interest because the lender was bearing the risk.
, ● The duties of the borrower could be enforce by condictio. No contractual
duties on the other side because it was unilateral.
● The lender might be liable in delict if his good was defective and he was at
fault.
Commodatum
● Gratuitous loan of a corporeal thing to be returned after a period of time. If it
wasn’t gratuitous then it was hire, not commodatum. Usually made for a
specific purpose.
● Borrower only received custody, not ownership or possession. As there was
no title passage, a thief could be a lender with a court action.
● Duties of the borrower:
o use the property for agreed purpose (otherwise liable for theft),
o Even if the borrower consented to the purpose for which it was used
but it was not the agreed one, there was strict liability for damage.
o liable for any damage caused in mora (delay of return).
o Standard of care was custodia.
o Return the property, plus accretions, in substantially the same state as
it was in.
● If the good was stolen, the borrower had the actio furti, not the owner,
because he had a contractual claim. Justinian allowed the owner to choose
who he sued – borrower in contract or thief in delict.
● Duties of the lender:
o allow the borrower to borrow for the agreed time. If the borrower
misused the item he could recover it straight away.
o Reimburse the borrower for abnormal expenses
o No liability for negligence, only dolus – harm by known defects.
● Joint benefit:
o If the loan benefited both parties the standard of care was that of the
lender in his own affairs. If the loan was purely for the benefit of the
lender, the borrower was liable only for dolus.
o If the lender benefits, he is liable for defects he ought to have known of.
Demonstration of different levels of liability according to the balance of
interests.
● Remedies:
o Actio commodati – enforces the borrower’s duties.
o Actio commodati contraria – may be used by borrower if, for example, his
expenses were greater than the value of the item loaned.
Depositum
● Item handed over for safekeeping. This could not be land. Gratuitous –
otherwise hire.
● Bona fidei and imperfectly bilateral.
● Duties of depositee:
o Had to keep the thing safe, but was only liable for dolus. Sometimes dolus
would be equated with gross negligence.
● Duties of depositor:
