Consensual contracts and other contractual relationships - Law of obligations

the four consensual contracts

-       Partnership

-       Sale

-       Mandate

-       Letting and hire

(All created by praetor bona fide and after the stipulation as a response to the expansion of Rome)

Partnership

• Societas

• an agreement made by two or more people to share risks and benefits, either generally or in some specific business or activity

• could cover the whole of the partners’ property and affairs not just business partnerships

Letting and Hire

• Locatio Conductio

• Covered various situations

• locatio conductio rei (hire of a piece of property),

• the locatio conductio operis (hire of a piece of work, an agreement to perform a specific task in

  exchange for payment)

• the locatio conductio operarum (hire of services, in effect a contract of employment).

Sale

• (Emptio Venditio)

• By agreement on subject matter and price

Mandate

• Mandatum

• In principle gratuitous, or else it would be a contract of hire.

• In origin, it was an arrangement by which services were provided out of friendship or as a favour

What was required for the creation of consensual contracts

• No formal requirements for constitution beyond an agreement of the parties

• Ara – deposit or statement, evidentiary tool to show that consent happened and a transaction took place. Early idea of damages if contract falls through.

(ownership only transfer when there is a valid conveyance)

What the parties had to agree on to form a contract of sale

• The item being bought or lent out

• The Price (had to be in money) – no action allowed by praetor where the value isn’t in money (otherwise it’s a contract of barter)

 

What the sellers duties were

•  Deliver the thing and its vacant possession

•   Obligations arising from unjustified enrichment

• Had to give money back if the contract failed

•   Duty of care but seller didn’t have to fix the state of the thing if something goes wrong

• When the contract concludes the risk transfers to the buyer

 

Obligations of the seller in a contract of sale

• Transfer best possessory right possible

• They had to transfer vacant possession (that no one can kick you out of)

•   Not necessarily the ownership

Remedies available to the buyer for latent defects

Timeline – nothing —> warranty for slaves —> warranty on everything by the time of Justinian

 

• Originally no remedies for this (Principle of caveat)

• Idea of warranties develops – remedies before a period agreed upon

• If no warranty is given a buyer could rescind and get the money back within 2 months (developed through slave trade, need for basic buyer protections)

• 6 months and 12-month protection for latent defects

Role of the Curule Aedile in the development of remedies

• Developed the idea of strict liability through issuing edicts protecting buyers from hidden faults in slaves and livestock sold in public markets

• Actio Redhibitoria

• Actio Quanti Minoris

Actio Redhibitoria - action for recission

• Let buyer recover full purchase price with interest on returning the slave to the seller if serious defects were discovered

Actio Quanti Minoris - action for reduction

• For less serious defects, allowed the buyer to recover a part of the price; difference between the slaves actual value at the time of the sale and price paid.

four main innominate contracts

• Procerium – same as commodatum (loan for use but for land)

• Transactio – court settlement

• Permutium (contract of barter)

•   Estimatum (loan for a period, if not given back it changes into a contract of sale, obligation to buy is created)

• What they all had in common was that they were enforceable when one party had performed his or her side of the bargain, but the other

  had not.

Pacts

• If it is subsidiary to a real contract, then it can be considered as a clause in it and can be sued over.

• Naked pacts - rise to defence not an obligation

• Clothed pact – contractual effects

Differences between a ‘pact’ and a legally recognised ‘contract’ according to Roman law.

•   A pact was an additional clause to a contract, simply and agreement of a kind

• A legally recognised contract put obligations and duties on the parties while a pact simply enforced certain parts of the contract or defended the parties.

the four quasi-contracts

• Condictio indebti

• Negotiorum gestio

• Common ownership

• Administration of a wards estate (Tutela)

Condictio indebti

• Unjustified enrichment, If someone mistakenly pays what is not due

what the quasi contracts have in common

• Involve obligations, which cannot properly be understood as arising from contract, but which, because they are not based on wrongdoing, are seen as arising ‘as though from contract

• Actions that amount to unjustified enrichment

• Concerned with preventing unjust loss to one party rather than the unjust enrichment of the other, but these are arguably two sides of the same coin.

Modern day transposition

• Many of its ideas like the Negotiorum getsio and unjustified enrichment have made their way into modern law

• Specifically in contract law: Lothian Regional Council – sums paid on the basis of condictio indebti

Negotiorum gestio

• The ‘conducting of another person’s affairs’ without their authorization.

• Gratuitous action with expenses that the person expects back

• Gestor could be liable for dolus for the quality of the service completed

• The duties of the principal were to accept the performance and to reimburse the gestor for expenses that had been properly incurred.

Roman concept of unjustified enrichment

•  Lays in the form of actions called the condictio

• The idea of repayment of something not due

• Allowed for provisional payments where there was uncertainty as to whether the debt existed allowing for recovery of the price if not.