Roman: Contract

• Agreements are divided into two main types: those arising by agreement (contract) or where a wrong has been committed (delict)
• Quasi-contract was a miscellaneous category for obligations closer to the nature of a contract than delict, but which did not neatly fit within the category of contract
• There was no such as thing as assignation in Roman Law — legal tie between parties was seen as strictly personal to them
• Novatio — original obligation being replaced by a new one. This could be effected by the debtor through stipulatio to make performance. This was a way around the bar on assignation.
• Disadvantages of Novatio: requiring cooperation of the debtor + extinguished any security rights accessory to the original obligation
• Procuratio in rem suam was the more popular workaround. Consisted of an authorised person only nominally acting on your behalf; in reality on his own behalf; functionally equivalent to assignation. If successful, they would hand over the winnings.
• Confusio — same person became both creditor and debtor. This may happen when debtor was the creditor’s heir or vice versa.
• Extinction of personal rights could be done through:

  • Performance
  • Acceptilatio - Substitution/excusing of performance
  • Novatio
  • Litis contestatio — special case of extinction within litigation; discharged original obligation and replaced by equivalent one based on the litis contestatio
  • Impossibility of performance
  • Compensatio — when parties both creditor and debtor to each other, debts could be held to cancel out except to the extent of any surplus
• Real contracts involve the delivery of a thing (res)
• Until delivery, either party to a type of real contract could withdraw from the agreement
• There are four recognized real contracts: mutuum, commodatum, depositum, and pignus
• Mutuum involves the loan of consumable items. The borrower must repay an equivalent, and interest can be stipulated.
• Justinian set maximum interest rates for mutuum, and loans to sons-in-power were unenforceable but created natural obligations.
• Commodatum is when the original thing lent must be returned to the lender. It is a gratuitous contract and requires good faith.
• Commodatum requires duties of the borrower and lender including:

  • The borrower must use the property only for the agreed purpose and take care of it.
  • The lender must allow use for the agreed period and pay extraordinary expenses if necessary.
• Depositum involves handing over a moveable thing for safekeeping. It is a gratuitous contract and requires good faith.
• Through a contract of depositum, the depositee is liable for deliberate wrongdoing, and the depositor is liable for damages caused by their fault.
• Pignus is a bilateral contract where a creditor hands over property as security for a debt. It is created by the delivery of the pledged property.

  • Considered part of property law, and the creditor acquires a real right over the pledged item.
• A depositor is liable for any necessary expenses incurred by depositee in a contract of depositum.
• The borrower in a commodatum is held to a standard of care of ‘that which the most careful paterfamilias shows in his own affairs’.
• In mutuum, the risk lay with the borrower as owner of the property at any time post-delivery. The equivalent property had to be of equivalent quality, not just of the same kind.
• A lender in commodatum was also liable where damage resulted from their own fault eg. knowingly lending defective containers from which wine/oil leaked and was lost
• Consensual contracts had no formal requirements for constitution beyond agreement of the parties (except sale, which had writing requirements)
• The four types of consensual contracts were sale, hire, mandate, and partnership. These were bilateral and had obligations on both parties.
• The two advantages of consensual contracts were that they could be made informally + could be made at a distance; Could be carried out by communication of letter/messenger.
• The three requirements of a contract of sale were that they had to be comprised of:

  1. Agreement; on
  2. Subject matter
  3. Price