roman law of obligations (2)

8/13/2019 Roman Law of Obligations (2)

1/28

Roman Law Law of Obligations

James Grech

LL.B 1st Year

--------------------

R W LEE: The Elements of Roman Law

Roman Law of Obligations

Law of Obligations:

I Obligations involve a relationship between two people the one who requests the

obligation and the one who should give the obligation. Obligation is a res incorporales. It

is an incorporeal res. Thus an obligation belongs to the jus rerum of the Law of Things.

However it creates ajus in personam i.e. a right available against a specific person not ajus in rem a right available against persons in general or as it is sometimes

epressed against the whole world. This is a distinction which was emphasised b! "aulus.The essence of obligation does not consist in ma#ing us owner of a thing or entitling us to

a servitude but in binding a person to us to give something or to do or to ma#e good.

Thus the obligation as such is not the giving of a thing but the binding of a person togive$ to do or ma#e good.

%ustinian&s definition of obligation is in terms ver! wide. '! (oman usage it included

onl! rights in personam capable of estimation in mone! or in other words capable ofpertaining to the sphere of proprietar! rights. It did not include rights created from famil!

relations or those created from public law. )ccording to *aius obligations included thoserights and duties recognised b! thejus civile. %ustinian said that it includes some of thepraetorian rights and duties. In fact whether a right is regarded or not as an obligation is a

matter of usage rather than definition.

Classification of Obligations:

1. Civil and praetorian or honorary:

This mode of classification distinguishes obligations according to their source. Itdistinguished between those coming from thejus civile and those coming from the

jus honorarium or praetorianum +praetor&s ,dict. %ustinian ma#es reference to

this mode of classification as the principal division of obligations however hema#es no further use of it ecept for indicating the source or derivation of the

obligation.

2. ! Contractu " #uasi ! Contractu " ! $elicto %&aleficio' " #uasi ! $elicto:

These above are terms which distinguish between the obligations on the basis of

the wa! of establishing the obligation. There were those established e! contractu

on the basis of agreement$ those (uasi e! contractu )on the similarit! of an


2/28


agreement$ those e! maleficio"delicto arising from a delict and (uasi e!

maleficio"delicto arising from the analog! of a delict. )s *aius sa!s in the

second boo# of the *urea the distinction between obligation is three-fold Obligations arise from contract or from delict or b! special rules of law from

various t!pes of cause. However this distinction can be objected. /irst because the

obligations described as arising (uasi e! contractu seems to resemble obligationsarising from contract merel! in having negative character of not arising from

delict. 0econdl!$ the distinction between the obligatio e! maleficio and obligatio

(uasi e! maleficio has no logical foundations. However$ the two-fold distinctionleaves man! obligations unaccounted for. Thus$ the three-fold distinction

underlines those obligations created b! contract1agreement$ b! wrongdoing or b!

an! other wa! which can&t be categorised with others.

+. Civil and ,atural:

) civil obligation is one which is full! protected b! law and enforceable b! actio.

) natural obligation is one which is said to be onl! imperfectl! protected b! law.

/urthermore it is not enforceable b! action$ but has legal consequences$ whichvar! with the circumstances. Thus$ although a natural obligation is not

enforceable b! actio$ it ma! have legal consequences e2 it can be transformedinto a civil obligation b! novatio. However these legal consequences var!

according to the circumstances.

The onl! common consequence for all cases of natural obligation is the eclusion

of the condictio indebiti a personal action based upon the dut! of an analog! or

similarit! of a contract to restore. 3atural obligations resulted from the contracts

of slaves and from contracts between a paterfamilias and a filiusfamilias orbetween the persons subject to the same potestas. 0ome 3atural obligations in

(oman times can still find their counterpart in toda!&s modern law2 e when an

impubes +minor haven&t reached the age of pubert! ma#es a contract without theauthorit! of his tutor or as it becomes in later (oman law$ when a minor ma#es

a contract without the consent of his curator. ) nude pact$ one which was not

classified as contract or actionable pact$ produced a natural obligation.

II Obligations Arising from Contract:

4hen the (omans spea# of obligations arising from contract$ the! mean obligationsarising from convention or agreement. )greements were not$ strictl! spea#ing$

actionable$ unless the! could be referred to one or other of four categories.

)greements were made2

a Re b! the handing over of a res ) +(eal Obligation

b -erbis )b! a form of words +5erbal Obligationc Litteris ) b! a special #ind of writing +Litteral Obligation

d Consensu )b! agreement without an!thing further +6onsensual Obligation.

This was the classification in which the (omans categorised obligations.

7


3/28


Other Classifications %of essence':

- 6ontracts can be unilateral or bilateral. 4hen contracts are unilateral when the

dut! of performance is all on one side +e2 in a loan$ onl! the borrower is bound.

In bilateral contracts there are reciprocal obligations. )gain reciprocal obligations1 bilateral contracts can be subdivided. There are those bilateral contract in which

the! are said to be perfectl! bilateral because the dut! calls both parties at the

same moment +of the conclusion of the contract e2 sale. In other situations$ onepart! ma! have an immediate dut! and the other part! ma! have a

contingent1conditional dut!.

- 6ontracts can also be stricti juris or bonae fidei. This classification properl!applies to actions but usage permits its etension to the contracts corresponding to

the particular actions. )ll unilateral contracts are stricti juris the! bind the

promisor to the ver! thing he has promised neither more nor less. If action is

brought upon them$ equitable defences must be raised b! wa! of plea +e!ception.On the other hand$ all bilateral contracts are bonae fidei. 8nder the formular!

procedure$ the jude or judge had the role to decide according to the good faith ofthe parties.

- 6ontracts are formal or informal +or casualbecause the reason for the contract isirrelevant. ) contract is formal when the form ma#es the contract. )n informal

contract on the other hand depends upon the intention of the parties not the form

in which the contract was made. +stipulatio formal 1 sale informal.

/ormal 6ontracts are sometimes called abstract because the! are often dissociated

from the events outside their formalit!. /ormal contracts are self contained. In the

course of time$ abstract contracts +formal tend to become casual +informal andso formalit! decreased even from contracts. )fter the e!ceptio doli introduced b!

)quilius *allus in his ,dict$ it was possible$ as it had not been before to go

outside a formal contract and to inquire into the circumstances in which it wasmade. This means that if someone claims that he was induced b! another to bind

himself b! formal contract$ he could raise the issue b! pleading the e!ceptio doli.

'efore$ the parties could onl! hold an action against an irregularit! in the

operation of the formal contract not on eterior circumstances.

) 6ontract is not necessaril! formal because the law prescribed a form to it.

$olus ) Culpa:

,ver! part! in the contract is epected to underta#e some standard of conduct. Thisvaries with the circumstances and determines the general measure of his responsibilit! +in

court. ,ver! contract must be answerable for intentionall! wrongful acts or dolus. If

such a contract is not answerable for dolus$ it is without effect. However$ a person is not

onl! required not to do wrongful acts$ but also to establish a certain measure of diligence.

9


4/28


It is important to sa! that the Law of the (omans established a rule that the part! who

benefits b! the contract incurs the higher liabilit!. 4hen the contract is bilateral$

obviousl!$ both parties should ehibit the same degree of diligence or attentiveness.4hen a person fails to ehibit such diligence$ he is liable for culpa.

There are two #inds of diligence$ a higher and a lower one2i $iligentia !acta or!actissima ) $iligentia oni /atrisfamilias: The higher

diligence is that which the good father of a famil! habituall! ehibits in his

affairs.ii $iligentia #uam 0uis Rebus: The lower diligence is that which the person in

question should ehibit in his own affairs +holding the obligation i.e. one of

the parties in a contract.

4here this standard is applied$ the person in question should pursue his normal course

and it is not necessar! for him to be concerned about ideals. The lower diligence$ when

not ehibited$ is said to be culpa levis in abstracto or slight negligence in the abstract.

4hen there is lata culpa +gross negligence i.e. not perceiving what ever!one canperceive$ it indicates a complete obtuseness of mind and conduct.

IIIReal Contracts:

This group includes four particular contracts. The! bear common elements which are thei the agreement and ii the handing over b! one person to another of a res.

1. &utuum:

:utuum is a loan for consumption of mone! or for other things which can be weighed$numbered or measured +res fungibiles. The effect of the contract is to vest the ownership

of the thing transferred in the transferee and normall! the lender must be owner of the

thing lent$ and competent to alienate. However$ the latter requirement is not alwa!ssatisfied. ,2 If ) owes 6 mone!$ and 6 tells ) to give them directl! to ' and ' ta#es the

mone! on loan. 6 is the lender but was never owner of the coins lent. :utuum is

obviousl! a unilateral contract. The transferee +borrower can pa! the transferor +lenderbac# at the time agreed with equal amount in qualit! or quantit! +be it good or mone!.

The dut! of the borrower was enforced b! an action called action certae pecuniae

creditae or condictio certae pecuniae. The plaintiff can challenge the defendant to a

wager of 19 of the amount in suit which means that the defendant would pa! the loanand 19 of it etra. If the plaintiff fails in his action he had to pa! 19 of the amount to the

defendant thus the defendant would pa! 719 of the amount bac# to the plaintiff.

nterest on money lent:

Interest on the mone! lent was not an obvious condition. The parties might agree that theloan was to bear interest +usurae but this was not binding as a contract unless epressed

in the form of a stipulation. )n agreement for interest created a natural obligation.

0tipulatio sortis et usurarum: where the contract became merel! verbal and the borrower

bound himself to pa! both loan and interest.

;


5/28


Rate of nterest:

The permitted rate of interest was variousl! defined at different periods. The law of the


6/28


iii to eercise the highest degree of diligence +attentiveness e!acta diligentia.

He was therefore liable for dolus and for culpa levis in abstracto +slight

negligence in the abstract. However$ he was not liable if the thingdisappeared from a cause outside his control i.e. accidental cause +casus.

iv not to use the thing ecept in the terms of the contract. If he used the thing in

an unauthorised wa! he was liable also for casus$ and if he did so in bad faith$for theft.

The duties of the lender were2

i to allow the borrower to ma#e use of the thing for the time agreed or for a

reasonable time in the circumstances.

ii to cover him for etraordinar! epenses. ,2 ,penses of medical treatment ofa sic# slave who borrowed b! commodatumfell on the lender.

iii To cover him for damage caused b! the thing itself which was lent through

some defect or mischievous qualit! of which the lender was aware. +e2

lending of vessels which the lender #new were lea#!.

*ctions:

The lender could ma#e use of the actio commodati directa to enforce the duties of the

borrower? the borrower had the actio commodati contraria to enforce the duties of thelender.

+. $epositum:

This is a contract whereb! the depositor +one of the parties gives to the depositarius a

thing to be #ept for the depositor gratuitousl! and returned on demand.

The duties of the depositarius +the one to whom the thing in deposit is given were2

i to #eep the thing$ not to use it. If he used it in bad faith he was guilt! of theft

ii to restore it on demand as good as he received it with an! produce oraccessories. )ccording to the institutes and tet in the @igest the depositarius

was liable for dolus not for culpa. He was also liable for culpa lata +gross

negligence.

The duites of the depositor were2

i to compensate the depositar! for all epenses

ii to cover him for all damage attributable to the dolus or an! culpa of thedepositor e.g. if he deposited a slave whom he #new or should have #nown to

be given to stealing.

*ctions:

The depositor had the actio depositi directa to enforce the duties of the depositarius and

the depositarius had the actio depositi contraria to enforce the duties of the depositor.

=


7/28


0pecial Cases of $epositum:

a $epositum ,ecessarium or &iserabile:This was when the depositor deposits to

the depositarius when there is a moment of social instabilit! or civil disturbance

e2 fire earthqua#e or shipwrec#. It gave rise to a claim for double damages if thepropert! was not returned on demand.

b $epositum 0e(uestre: This was a deposit made b! two or more persons +not oneof a movable or immovable thing particularl! of a thing in litigation +#nown as

res litigiosa with a third part! called a sequester on the terms that it had to be

given to one of the parties. 8nli#e an! other deposit$ this t!pe of deposit conferred

juristic possession b! quiritiar! title$ not merel! detention or possession butownership.

c $epositum rregulare: This was a deposit subject to restitution onl! not to in

specie. This was usuall! associated with mone!. It was understood that it is theamount which must be returned not the actual +in specie coins. 8nli#e mutuum

this was a deposit made with a capitalist not a loan made b! a capitalist and itslegal effect was different. It was bonae fidae not stricti juris.

3. /ignus %/awn or pledge':

This is a contract whereb! a corporeal thing +not an incorporeal one a right is handed

over b! one person to another as securit! for a debt. It was one of the modes of creating a

real securit! differing from mancipatio cum fiducia because it did not involve transfer ofpossession. 'ut this is a topic belonging to the Law of "ropert!. Here we are concerned

with pignus as a contract or obligation2

The duties of the pledgee +creditor were2

i to restore the thing when the debt was terminated

ii if the propert! was sold to restore the surplus if an! after satisf!ing the debtiii to eercise eacta diligentia.

iv In case the pledge was a movable$ the thing cannot be used unless it is

epressl! authorised b! the contract. If he did so in bad faith he was guilt! of

theft.

The duties of the pledgor +debtor were2

i to pa! necessar! and within reasonable limits useful epenses incurred b! thecreditor about the thing pledged. ,.g. repairing a house or medical attendance

on a salve

ii to cover the creditor for damage or mischief caused b! the thing pledged. /orboth parties the level of diligence or attentiveness is the same2 ,acta

diligentia.

iii To pa! damages if he pledged a thing which did not belong to him and the

creditor had in consequence lost the benefit of his securit!.

A


8/28


*ctions:

The pledgor had the actio pigneraticia directa to enforce the duties of the pledge

particularl! the dut! of restoring the propert! when the debt was etinguished. The

pledgee had had the actio pigneraticia contraria.

I! Verbal Contracts:

There were three main verbal contracts but onl! the last one was the most important. The

first two$$otis $ictio and4usjurandum Libertiwere of minor importance compared to

0tipulatio.

$otis $ictio:

This was a formal constitution of a dos made b! the woman herself$ an agnatic maledescendant or her debtor.

4usjurandum Liberti:

This was the obligation of the freedman to the patron after he has been manumitted.4hen a master manumitted a slave it was usual to require him to underta#e an

engagement to render services after manumission. The contract was secured b! an oath

which repeated after manumission created a civil liabilit!.

0tipulatio:

0tipulation consisted in a formal question and answer. One part! +stipulator or reusstipulandi as#ed to another +reus promettendi if he promised$ and the latter promised. It

was essential that there should be precise correspondence between question and answer.

The contract was unilateral and stricti juris. 0ome sa! that the idea of stipulation arosefrom the earliest recorded form of the verbal contract consisting in the solemn formula

Bspondesne5 ) spondeoC. The stipulation evolved in a wa! that formalit! was reduced.

The net step then was to reduce the stipulation to writing. The oral stipulation continued

to eist consisting as it did from the beginning in question and answer. )ll these changeshowever did not change the fact that the parties must come together for the conclusion of

the contract$ a feature which throughout its histor! distinguished the stipulation from the

consensual contracts of modern law. In fact$ no verbal contract can be validl! concludedwithout the presence of the parties.

The result then of a long process of development is that a contract effected b! a solemnform of spo#en words and possibl! secured b! the sanction of religion has ended in a

formless written contract. In the latest (oman Law almost an! written agreement was

enforced as a stipulation.

D


9/28


0cope of 0tipulation:

0tipulation was applicable to an! #ind of agreement and had a wide field of operation. )man might stipulation for2

a a specific sum of mone!b some other specific thing

c an! act or abstention1non-participation even of an uncertain or indefinite

characterd to novate an eisting debt had the advantage of facilitating proof and of

permitting the creditor to sue b! condictio.

To protect stipulation there was the actio e! stipulatio and the condictions. The action estipulatio seem to cater for all three situations of stipulation mentioned above but in

realit! it applied where condictions were inapplicable.

/rocedural 0tipulations:

'esides their common use as a form of contract between parties$ stipulations were alsoemplo!ed as an incident of judicial procedure corresponding to what we call a

recognisance +bond b! which a person underta#es before a court or magistrate to observe

some conditions or the sum of mone! paid for this. 0uch stipulations ma! be requiredb! the jude +judicial praetorian$ b! the praetor +or curule aediles +conventional or b!

the jude or praetor 1 aedile +common.

! Contract Litteris:

In the old law the contract litteris consisted in an entr! in a creditor&s main record of his

account +ledger of a pa!ment +code! accepti et e!pensi'. The literal contract was in mostrespects inferior to the stipulation. It was onl! available for a mone!-debt. /urthermore$

onl! citiEens could be creditors and it was questioned whether peregrines could be

debtors.

!IISale:

0ale ma! be defined as a contract whereb! one person promises to transfer to another athing and to procure to him the undisturbed and permanent possession of it. There are

three main elements needed in sale$ these are2

. Consent:

The conclusion of the contract b! spo#en or b! written words is essential

for the sale. If there is no written contract$ then the contract is complete assoon as the thing and the price are definitive. On the other hand if there is

a written contract$ that means$ that the! do not intend to be

$uties of the 0eller:

F


10/28


The 0eller was bound2

a to deliver and give vacant possession: The seller had the dut! to ta#e all

the steps necessar! to transfer to the bu!er all the rights he had in the thing

sold together with the accessories. /urthermore$ he had to conve! it b!mancipation if it was a res mancipi and b! traditio if it was not. The

objective of the sale was to ma#e the bu!er the owner of the resbeing

transferred. Thus ownership had to pass with the thing +not onl!possession. However$ the bu!er was not bound to give ownership

immediatel! and directl!. Thus he was not bound for rem dare

immediatel!. In fact he could simple give vacant possession at first +rem

praestare.

To do this the seller has to follow two steps. /irst he has to give the

ph!sical possession of the thing to the bu!er which he himself cannot do if

for eample$ another person in possession of that thing b! order of thepreator$ or because the! are legatees or fideicommissaries who have been

let in possession in securit! of their claim. 0econdl! the seller must givevacant possession or eclusive possession this means that it is not

defeasible b! prohibition and it should be free from burdens interfering

with it ecept such as had been agreed upon.

b to ta6e care of the thing until delivery: In the classical period$ the vendor

was liable for custodia. In %ustinian&s time he was onl! required to displa!

an e!acta diligentia ) in this case also #nown as diligentia custodiendo.He was liable for dolus and for so-called culpa levis in abstractobut not

for the accidental perishing of the thing or if it was lost b! theft or suffered

deterioration. If the thing was stolen$ destro!ed or damaged b! a thirdperson$ the purchaser was entitled to call upon the seller for cession of

actions2 e.g. vindicatio7 actio furti and actio legis *(uiliae.

c to guarantee against eviction: In the earl! period$ a purchaser b!

mancipation whose title was not defended or not effectivel! defended b!

his vendor so much that he suffered eviction$ had an action for double the

price actio auctoritatis. 4hen this was not applicable$ stipulation wasused to obtain double the price +stipulatio duplae'. 4hen the propert! was

less valuable$ the guarantee against eviction was remedied b! stipulatio

habere licere.This gave rise to a claim for an indemnit! if the title proveddefective. Later on$ such remedies were implied in the sale. )n action for

stipulation is when an action is brought against or b! the purchaser

terminating in an adverse decision on his right to possess. In an action forcover or protection +indemnit! it was onl! necessar! that possession was

seriousl! menaced. In the first$ the measure of damages was the price or a

multiple of the price. In the second the purchaser claimed general damages

and the mar#et value of the propert! at the time of the eviction. In

G


11/28


stipulation$ he would have suffered actual eviction or escaped it b! pa!ing

the condemnation fee litis aestimatio. In second case$ that of indemnit!$ he

might still be possessor but not b! the title of the vendor$ but of that givento him b! the real owner.

d' to guarantee against undisclosed defects:

i In ancient period$ if the land was sold b! mancipation and the vendor has

misrepresented its etent the purchaser can sue him for double the value of the difference./urthermore$ the purchaser could also sue him upon special terms attached to the law of

mancipation +leges mancipii'.

ii Later on in histor!$ the vendor was bound b! an informal t!pe of representations andguarantees #nown as the dicta et promissawhich were made at the time of sale and thus

he was liable of disclosed defects which he was aware of. )lthough he was not liable for

latent defects.

iii Therefore if a purchaser wished to protect himself he had to do so b! stipulation and

this came to be the usual course. It might be supposed that this guarantee li#e theguarantee against eviction +with which it was frequentl! combined in a single stipulation

would have come to be implied in ever! contract of sale but the law too# a different line

of development.

iv The curule aediles acting as mar#et police officers$ required vendors of slaves and

cattle to ma#e public their defects +moral and ph!sical. The aediles gave actions against

the sellers when the defects were not made public and became apparent - whether thevendor were aware or not. The actions were called actio redhibitoria and actio

aestimatoria. In the first case the action would oblige the vendor that within si months

he would withdraw the sale and the price is not adequatel! restored. This is done if thething had defects which impaired its usefulness to the purchaser. In actio aestimatoriathe

aedile declared that within a !ear$ the purchaser can affirm the sale but claim a reduction

in the price.

v Thus the edict of the aediles protected the purchasers of slaves and live stoc# +at first

in the mar#et - later an!where. The civil law gave a remed! onl! in the circumstances

above described. 'ut ultimatel! the aedilician remedies came to be etended to ever!#ind of sale. If the tets could be ta#en at their face value$ this development would seem

to have ta#en place as earl! as 8lpian or Labeo. The s!stem was completed during

%ustinians s!stem.

If the vendor had guaranteed the eistence of certain qualities or the absence of certain

defects or if he had failed to declare the defects of which he was aware he was liable forgeneral damages in an actio empti. In other cases he was limited to the remedies given b!

the actio redhibitoriaand the actio aestimatoria.

$uties of the uyer:


12/28


The bu!er was bound

. to pa! the price$ with interest if pa!ment was overdue$ but not unless the

seller was willing to perform his duties. Therefore the bu!er might refuse

to pa! if the seller fails to deliver or if he had sold in bad faith a thingwhich did not belong to him$ or if the seller did not give vacant possession

+vacua possessio'or if the abilit! of possession of the bu!er was being

proceeded.

7. to ta#e deliver! as soon as the seller tendered it or at the time agreed. )n!

costs properl! incurred b! the seller between date of the contract and

deliver! were charged to the bu!er.

8he 8heory of Ris6:

)s soon as the contract was concluded the ris# passed to the purchaser. If the thing

perished or was stolen or suffered deterioration while in the hands of the seller without

fault on his part the bu!er had to pa! the price just the same. This$ as can be seen$ isinconsistent with the general idea of pa!ment and deliver! - that one is dependent on the

other. +no deliver!$ no pa!ment - no pa!ment$ no deliver!. The rule that the ris# passed

when the contract was complete did not alwa!s mean that it passed as soon as there was a

contract binding the parties. The s"b#ect matter an$ the %rice sho"l$ be e&actl'

ascertaine$ an$ the sale is "ncon$itional . (ailing an' of these the ris) $oes not %ass .

Therefore the ris# does not pass if + the sale is subject to a suspensive condition which

has not !et been satisfied +7 and also if the subject matter of the sale or the amount of thepurchase mone! has not been precisel! determined.

If a vendor is to deliver either a slave or another as he pleases$ then the ris# is still vestedin the vendor and has not !et passed to the purchaser because the subjected matter is

undetermined. However$ if both slaves die the purchaser will nevertheless have to pa! the

agreed price. 4hen selling with alternative$ the ris# of deterioration is in the hands of the

purchaser. ,2 if one of the slaves goes blind$ the vendor can still sell him at the agreedprice.

*ctions:

The vendor had the actio venditi and the purchaser had the actio empti and the aedilician

actions which were ultimatel! entirel! absorbed into the actio empti.

!IIIHire:

'! hiring we mean whereb! one person agrees to give to another the use

or the use and enjo!ment of a thing or his services or his labour in return

for remuneration$ usuall! in mone!.

Consent:

7


13/28


3o form is needed. The contract being consensual does not depend for its validit! upon

the presence of the parties. In fact$ it ma! be concluded b! letter or b! messenger. Thecontract of hire is complete as soon as the parties agree upon its essential terms.

0ubject &atter:

There are three t!pes of hiring2

a the hiring of a thing +locatio conductio rei'b the hiring of services +locatio conductio operarum'

c the hiring of a piece of wor# +location conductio operis'

In the first two cases$ +a and b the person who supplies the thing or service is called thelocatorand the person who pa!s is the conductor. In the third case the person who gives

the order for the wor# and pa!s for it. In the third case$ the naming wor#s oppositel! - the

one who requests or orders the wor# and pa!s is the locator and the one who eecutes the

wor# or is responsible for its eecution is the conductor.

)s regards hiring it was alwa!s assumed that there was alwa!s something placed.There was a thing placed at ones disposal$ or placing oneself or ones slave at anothers

disposal$ or placing something in ones hands on which to epend labour. The word place

is epressl! used so as to ma#e the distinguish between to furnish something +0ale andto place something +hire.

It can be said that locatio conductio operarum +of services and locatio conductio operis

+of a piece of wor# are two different wa!s of viewing the same thing. ,2 If there issomeone who will build for me a bloc# of flats pa!ing ever!thing at his epenses. Thus

one can sa! that in this eample$ I am the conductor because i am pa!ing for a service

and m! friend is suppl!ing or placing the thing or service so he is the locator. On theother hand one can sa! that I am suppl!ing or placing an order and so I am the locator

+even though I am pa!ing for the wor# and m! friend is eecuting the placement so he is

the conductor.

3ot all services were subject of a contract b! hire. It was generall! limited to services

which were commonl! rendered b! slaves. :embers of what are called the liberal

professions were supposed to do their wor# for nothing. However the! could recover anhonorarium for their services b! means of the e!traordinaria cognitoof the magistrates.

)s regards the hiring of a thing$ in principle there was no difference between a movableand an immovable. Letting land did not create a real right to the conductor$ it was merel!

contractual. In (oman Law$ the lease can be ejected b! a purchaser of the land. I.e. if

there is someone who wants to bu! the land and the land is hired to another$ the law shallallow the bu!er to end the lease and bu! the land. 0uch ordinar! leases of land were

usuall! of short duration and in cases of agricultural tenancies did not eceed > !ears.

Remuneration:

9


14/28


This must consist in mone!. The amount must be certain or ascertainable and genuine. )

third person must fi the amount of hire$ if he does not there is no contract. If such adecision is left in the hands of one of the parties$ clearl! there is no contract of hire but

there would be a right to compensation for services rendered which could be enforced b!

the actio praescriptis verbis. The rule that remuneration must consist in mone! admittedof one eception. In the case of agricultural tenancies it might consist in a portion of the

fruits whether determined absolutel! + number of fruits - pars (uanta or in a fied

proportion of the !earl! !ield +pars (uota.

a ,mph!teusis resembled both hire and sale - but it was finall! decided to be neither but

just a special contract governed b! rules of its own.

b )s regards gladiators$ when the! are supplied$ the ones which survive unharmed are

hired and those who are #illed or maimed are sold. Thus it was a conditional sale or hire

of each gladiator.

c )s regards the goldsmith - although he is furnishing the object$ he is also suppl!ing the

material and the labour of the goldsmith is not described as hired.

d )s regards the tailor - If the charge is fied the contract is hire. If the man is to be paid

for his services but the amount is to be determined later b! agreement$ there is nocontract of hire but if the service has been rendered$ he can recover the value of his

services in the actio praescriptis verbis. If he is to do wor# for nothing +(uod raro

accidit it is mandate.

8he duties of the Letter:

The duties of the letter of a thing +locator rei were2

. to procure to the hirer its use and enjo!ment for the purpose contemplated b!

the contract and to deliver it free from defects +ignorance of the defect isirrelevant.

7. to #eep it in repair +ecept that the hirer was responsible for trifling repairs

9. to compensate him for necessar! and useful epenses.

The letter was not responsible for disturbance or eviction due to a cause which came intoeistence after the conclusion of the contract unless it was attributable to his own act.

Thus he was not liable if land which he had given on lease was epropriated b! public

authorit!. 'ut he must forgo his claim to rent.

8he duties of the 9irer:

The duties of the hirer of a thing +conductor rei were mainl!2

;


15/28


. to retain possession of the thing for the time agreed

7. to ta#e proper care of it +e2 #eep agricultural land in proper cultivation or not to

overload a hired beast of burden

9. and to pa! the agreed merces subject to just ground of ecuse.

'oth the hirer +conductor and the letter +locator of a contract of hire were required to

eercise e!acta diligentia in other words the! were answerable to dolus and culpa levis inabstracto.

In the case of hire of services$ the hirer of services need not pa! for services not rendered.

The hirer of land need not pa! for land the use of which had not been enjo!ed.6onsequentl! he was entitled to a remission of rent if there was failure of crops due to

storms of etraordinar! violence$ earthqua#e$ flood$ hostile incursion or other causes

falling under the general description of vis major.

The contract of hire was determined2

. b! epiration of the agreed term +in agricultural terms$ if the tenant remained inthe possession of the land be!ond the agreed time$ then it implied an automatic

renewal of the contract.

7. b! mutual consent9. b! either part! for just cause

;. b! merger of titles of both parties in the same person

>. b! destruction of the subject-matter of the contract

=. b! death of a locator operarum

*ctions:

Locator had the actio locati

)nd the conductor had the actio conducti

I*Partnership:

"artnership is a contract for reciprocal performances directed to a common purpose. It

was essentiall! the union of funds$ s#ill or labour or a combination of them for a commonpurpose which often had but need not have profit for its aim.

/ive forms of partnership were distinguished2

. niversal partnership+societas universorum bonorum' This no doubt grew out

of the ancient institution of consortium which was the name given to the relationbetween sui heredes holding together after the death of the paterfamilias. 'ut in

later times$ universal partnership eisted onl! b! agreement.

7. /artnership in all business transactions

>


16/28


9. /artnership in a particular business

;. /artnership in farming the revenues +societas vegtigalis' The (oman wa! of

collecting taes$ particularl! the land-ta called vegtigalwas to sell to a compan!

of speculators for an agreed price the right to collect and retain the ta paid b!individuals. Thus the (oman officers would sell the right to collect and retain ta

paid b! individuals on the vegtigal to a group of speculators. 0uch partnerships

belong to the sphere of public law and have little in common with the privatepartnerships above described. In particular partnerships of this #ind were not

determined b! death as were the ordinar! partnerships. These speculators were

#nown as publicani for which the ,nglish equivalent is ta! farmers.

>. /artnership in a thing or a particular transaction +societas unius rei. "artnership

in a thing is not easil! distinguished from co-ownership. It was a question of

intention. If the parties intended to create the partnership relation there was

partnership otherwise not. "artnership or transactionJ I have horse !ou have 9. Igive !ou m! horse and !ou sell all ; and give me a quarter. The question lies

whether a partnership was created simpl! for the sale or before it. If m! horsedies$ there is no partnership if I claim no share and Kpartnership& fails. On the

other hand$ the horse&s death affects the share of the partners.

ssential lements in /artnership:

a There must be a contribution b! each of the partners it must not be equal or

similar.b There must be a common interest ,ach must be entitled to some advantage. The

shares in profit and loss ma! be fied b! agreement. If there is no agreement on

the profits and losses the! should be equall! distributed.c There must be the intention to form a partnership #nown as the affectio societatis.

This was the onl! thing distinguishing partnership from joint ownership.

d There must be a lawful object.

$uties of the /artners nter 0e:

a ,ach should contribute his share as agreedb The! should share the profits and losses as agreed if not agreed upon the!

should divide them equall!.

c ,ach is to indemnif! the other pro rata against all epenses and liabilities properl!incurred on behalf of the partnership

d In all partnership business there must be an ehibition of the diligentia (uam suis

rebus.

9ow /artnership is $etermined:

=


17/28


a '! events connected with the person +e! personis' b! an! change in the persons

composing the group particularl! b! the death of one of the partners or if one of

the partners incurred a forfeiture of the whole of his estate. *aius notes thatcapitis deminutio also dissolved partnership. 4hen death dissolves the partnership

it means that if there were more than two the partnership should end amongst the

surviving partners and that if the partnership was of two individuals then itobviousl! cannot continue but perishes. However the death of a partner did not

put an end to the partnership until the other partners #new or were aware of his

death. "artners might agree ab initio that if one of them should die the survivorsshould remain in the partnership but this was a new partnership not a subsistence

of the old one.

b '! events connected with the subject-matter +e! rebus when the object of thepartnership has been accomplished alread! or becomes impossible of realisation

or when the partnership capital is ehausted

c '! an act of the will +e! voluntate ) partner might at an! time renounce thepartnership either epressl! or tacitl! as b! selling his share in the partnership

propert!. 'ut if he renounced unreasonabl! in breach of an agreement that thepartnership was to continue for an established period of time he eposed himself

to an actio pro socio.

d '! a juridical act +e! actione' or b! bringing an action for the liquidation of the

partnership.

8he eneral *spect of /artnership in Roman Law:

. The societas was not generall! a juristic person$ but it is questioned whether the

great partnerships were.7. ,nglish law states that B,ver! partner is an agent of the firm and of his other

partners for the purpose of the business of the partnership.C In (oman law this

was not so2 One partner had no implied authorit! to bind the others even inmatters strictl! within the business of the partnership.

9. ) view of profit is not necessar! or essential to the (oman conception of a

partnership.

;. In ,nglish law an agreement could be made so that ever! partnership is dissolvedas between all the parties with the death of an! partner. In (oman law such an

agreement was not permitted in ordinar! partnership.

*Mandate Mandantm:

:andate is a contract whereb! there are two parties involved2 the mandator and themandatarius. The mandator gives the mandatarius a commission to do something +sort of

errand and the mandatarius accepts. The mandatarius obtains no rewards however the

relationship is still +although imperfectl! bilateral. This is because from one side the

A


18/28


mandatarius is acquiring benefits for the mandator at Eero cost whilst on the other side

the mandator has to indemnif! the mandatarius against loss and liabilit!.

ssential lements of &andatum:

. The object of the contract must be lawful. The tas# required b! the mandatariuscan be either a tas# of general management +procuratio omnium bonorum or for

a specific dut! +procuratio omnium rei. It ma! also me entering into legal

relations with a third part!.7. The mandator should have an interest in the thing to be done b! the mandatarius. I

ma! give a mandate in the interest of2

i m!self alone +mea gratiaii m!self and !ou +mea et tua gratia

iii m!self and a third part! +mea et aliena gratia

iv !ou alone +tua gratia

v !ou and a third part! +tua et aliena gratiavi a third part! alone +aliena gratia.

If the element of interest is strictl! construed then onl! the first three constitute a

mandate properl! so called the last three don&t. However some mandates which

were not directl! in the interest of the mandator were considered to be validbecause b! giving a mandate aliena gratia or tua et aliena gratia +in respect of the

third part!$ the mandator would be in the position of a negotiorum gestorand as

such the mandator acquired a personal liabilit! and consequent interest in the

eecution of the mandate +mandatum (ualificatum or mandatum credendaepecuniae? furthermore$ if the mandatarius suffers loss$ the mandator is liable for

indemnit!. )n! such reasoning applied to mandatum tua gratia was interpolated.

9. The mandate must be gratuitous2 as we can see there is no subject-matter involved

in mandatum. This is because there should be no transfer from the mandator to the

mandatarius. However this rule li#e the last did not persist in practice or was amatter of form rather than of substance.

$uties of the /arties:

+:andatarius

a to eecute the mandate subject to the right of renouncing it re adhuc integra

+while he can do so without prejudice to the mandator and subject to just ecusefor failure to renounce at all or in good time

b not to eceed the mandate

c to eercise e!acta diligentia +liable for dolus +for dolus onl! in classical law andculpa levis in abstracto.

d to render accounts

D


19/28


e to ma#e over to the mandator all the benefits accruing from the mandate including

rights of action against third parties. Thus the mandatarius has to give all the

benefits corporeal or incorporeal from the mandate to the mandator.

+:andator

a to indemnif! the mandatarius against epense loss and liabilit! incurred in the

eecution of the mandate

b and not to revo#e the mandate to his prejudice.

) :andate ma! be determined +ended2

i b! mutual consent either b! arranging in advance for the termination of the

mandate after a certain time or in a certain event or b! subsequent agreement?

ii b! unilateral revocation or renunciation2 either b! the mandator$ before the

mandatarius has done an!thing in the eecution of his commission or b! themandatarius so that b! renouncing he does not put the mandator in a position

in which he cannot convenientl! do the thing himself or get someone else todo it for him.

iii b! the death of either part! however if the mandatarius in ignorance of the

mandator&s death proceeds with the act he is entitled to be indemnified b! theheirs. 6onversel! the heirs of the mandatarius are bound to ta#e the necessar!

steps to wind up the business in hand

*ctions:

:andators have the actio mandati directa and the mandatarius on the other hand has the

actio mandati contraria.

*I!e"m and #idcia:

,e!um: This old institution was a s!stem b! which in the earl! da!s of the (epublic$

debtors used to bind themselves b! a process per aes et libram resembling mancipation

which reduced them +immediatel! or on failure to repa! to a position slightl! better than

a slave.

;iducia:)t a time when the distinction between possession and ownership was not !et

drawn sharpl!$ in old transaction civil law modes$ the acquirer had to give a pactumconventum to re-transfer the ownership on pa!ment or as the case might be on demand.

The dut! to re-conve! was made good b! the actio fiduciaewhich was an element of

*ood faith. /iducia does not occur ecept as an incident of the conve!ance of a person ora thing. It is a parasitic institution and was not loo#ed upon as a contract. In the classical

age it was still in common use to constitute a pledge

*II$nnominate Contracts:

F


20/28


There were cases in which there was an obvious contract but it was difficult to point out

which #ind of transaction it was. ,2 when it is on the border line between twotransactions +sale and hire. Labeo held that an action at civil law should be given upon

the facts +civilem actionem in factum esse dandam. Labeo affirmed this to a case of

ambiguit! between conductio rei and locatio operas. It was the practise to insert at thebeginning of the formula a statement of fact +/raescripta verba'. This action came to be

available wherever there was an agreement for reciprocal performances$ not referable to

one of the recognised t!pes of consensual contract and when one part! had done his partwhile the other had not. These #ind of transactions are called innominate because the! do

not fall within the definition of an! of the recognised and named contracts though in fact

as will be seen the! are sometimes distinguished b! appropriate names. The! are real

because as in the case of the real contracts it is the fact that something has been done onone side that gives rise to the liabilit! on the other. 'ut whereas in the case of the real

contracts proper$ this doing consists in the handing over of a res$ to be returned in #ind or

inspecie$ in the case of innominate contracts$ one part! has done what he had underta#en

to do in terms of a preceding agreement.

!change/ermutatio:

If I agree to give !ou m! o in echange for !our horse there is no obligation because

echange is not a consensual contract but if in eecution of the agreement I have given!ou m! o I shall have an action against !ou if !ou fail to give me !our horse. Otherwise

I can reclaim m! o b! a condictio.

argain ) *estimatum:

Here I deliver goods to !ou on the terms that !ou are to sell them for what the! will fetch

and pa! me an agreed price. If !ou do not sell them I am to have them bac#. If !ou sellthem as !ou epect to do$ for more than the agreed price !ou #eep the difference. It was

discussed whether it was sale$ locatio operas or conductio operarum or mandate

/recarium:

This was a gratuitous grant of enjo!ment of land or goods$ revocable at will. This gave

rise not onl! to the interdict de precario for the recover! of the propert! from the grantee+preacrio accipiens but also to the actio praescriptis verbis +under %ustinian.

Compromise ) 8ransactio:

This consisted in the renunciation of a contested claim.

*IIIPacts:

)n agreement which did not conform to an! t!pe of contract nominate or innominate was

termed a BpactC or a Bbare pactC. It did not ground an action but ma! be pleaded as a

7G


21/28


defence.,uda pactio actionem non parit sed parit e!ceptionem. Later however$ certain

pacts were actionable.

/acta -estita:

. "acta )djecta2 These are pacts intended to form part of a principal contractand to modif! it +a sort of ulterior contract to the main one. ,2 an

agreement forming part of a contract of sale stating that the vendor shall

not be liable in the event of eviction or conversel! that he shall add to hisimplied liabilit! a personal securit! against eviction.

7. "acta "raetoria2 These were agreements recognised as binding b! the

praetor. The principal case was constitutum debiti an informal agreement$to pa!$ usuall! on a named date$ a sum of mone! +or to give some other

fungible thing due to the promisee from the promisor or a third person.

Other praetorian pacts were the jusjurandum volutarium and other

differentl! natured transactions called the receptum. It is important to sa!that "acts should give an actio in personam not an actio in rem.

9. "acta Legitima2 Three pacts were made actionable b! imperial legislation2

i an agreement to constitute a dos an agreement to give a gift +pactum

de constituende dote' ) made actionable b! Theodosius

ii a promise to give +pactum dantionis made actionable b! %ustinian

iii an agreement to refer a matter to arbitration or adjudication

+compromissum' made actionable b! %ustinian.

*I! %nilateral &eclarations of $ntention:

The contracts or pacts of which we have spo#en have the common qualit! of being

agreements. There were two institutions each of limited application which were unilateral

epressions of intention and sources of obligations.

-otum: This was a vow made to a god. In (oman law$ if a person has vowed a thing he is

bound b! his vow. The obligation b! vow was transferable to heirs.

/ollicitatio: )n offer or a unilateral promise. In certain circumstances this could not be

withdrawn. It seems to be confined to the filed of municipal or public law. If a person

promised to finance or eecute a wor# of public utilit! in consideration of a magistrac! orpriesthood conferred or to be conferred upon him or for an! other lawful cause or if there

was no such evident motive and the wor# had been begun b! himself or b! the town

authorit! or either part! had done something to give effect to it or he had transferredpropert! to the town$ the philanthropist was bound b! his promise or could not reclaim

the propert! because it was ver! right that benefits promised to cities should not be

revo#ed because the donor changes his mind.

7


22/28


*! Of Contract in 'eneral:

It is curious to sa! that there was a (oman law of contractsbut no generalised law ofContractwhich means there was no theor! of contract in general.

;ormation of Contract:

This underlines what is necessar! to the initial validit! of a contract. /or this there must

be2

i an agreement2 there must be the consensus ad idem +consensus on the

same thing. This consensus is absent if the epressed intention of onepart! does not coincide with the epressed intention of the other. There

ma! be an apparent agreement where there is no real agreement. This

will be the case when a person thin#s that he is contracting with a

certain person when in fact he is not or when he thin#s that thecontract has a certain content when in fact he has not. Thus an

apparent agreement arises when a person thin#s he is contracting witha certain person or ma!be a person with certain qualifications$ or

ma!be a person capable to contract when in fact he is not. Otherwise it

arises when a person is contracting thin#ing he will get < when hewon&t. In such circumstances the contract is usuall! void i.e. there is

no contract at all because the essential conditions of ever! contract are

breached. This brings us to the question of error and mista#e2

The commentators distinguish between different #ind of error2

a rror in /ersona2 This occurs when I mistoo# the identit! of the

person with whom I am contracting e.g. contract with ) thin#inghe is '. In modern s!stems mista#e in persona does not affect the

contract unless there is some good reason wh! it should e2

when the consideration of the person whoshouldbe contractingis crucial. In (oman Law$ the error in persona became actionable

as regards most transactions.

b rror in ,egotio2 This occurs when the part! understanddifferent modes of transactions. ,2 I give !ou a sum of mone!

through depositum and !ou believe it being mutuum. This also

happens when the partners in a partnership are not agreed on theconditions of the partnership. In both cases there was no contract

ab initio.

c rror in Corpore2 This occurs when the parties mista#e the res

for another. ,2 when stipulating slaves$ mista#ing a slave for

another. )gain there is no contract.

77


23/28


d rror in 0ubstantia2 It ma! be that the parties are agreed as to the

thing which is the object of their contract but that the! both are

or one of them is mista#en as to an essential qualit!. This error isver! much in connection with the contract of sale. The idea is

that there is a difference between the thing as it is and the thing

with the essential qualit! and it was thought that that essentialqualit! ma#es it a different thing and so the contract is void. The

remed! for this error is condictio. ,ven if both parties believe in

bona fidae that the thing is what the! thin# it is$ and resultsdifferentl!$ the contract is still void. (oman law limited the

application of error in substantia to two cases onl! when the

thin is not of the material supposed +e2 bronEe instead of gold

an mista#e as to the se of the slave. If there is an error ofsubstantia e2 acquiring bronEe instead of gold presumabl! I

ma! #eep the bronEe. This also happens if I&m acquiring gold

instead of bronEe. The idea is that a seller should as a rule #now

what he is selling. :ista#es eternal to the contract leaves itintact. ,2 I bu! a picture believing it is wor# of ). In fact it is

not the wor# of ). I have no remed! unless it was sold as wor#of ) or if the seller fraudulentl! led me to thin# it was such. Thus

the question is of motive and motive is generall! irrelevant

ecept as an indication of intention.

ii intended to create the contract there must be an intention to create a

legal obligation between the parties. If the parties do not intend to be

bound the law will not bind them. This rules out merel! socialengagement.

iii able to create a legal obligation between the parties The agreementmust be apt to produce the intended result. It must conform to one or

other of certain t!pes? that is it must be concluded re$ verbis$ litteris or

in specific cases consensus or be an innominate contract or actionablepact. The t!pe is called b! the commentators the causa or the causa

civilis of the contract.

iv relating to an object which is possible and lawful The agreementmust relate to an object which is possible and lawful. ,ver! agreement

must be an agreement about something. The something is the content

or the object of the agreement. It ma! consist in giving$ donating$doing or forbearing. 8suall! the parties establish their own terms but

when the contract is silent then the law supplies matters of detail as to

time and place of the performance. If the object of a contract isunlawful$ it is deemed to be impossible and thus void +e2 giving a res

sacra.

79


24/28


v made between competent persons Those who were not competent to

contract were2

a "ersons of unsound mind ecept during lucid intervals it is

irrelevant whether the other part! #new of the person&s condition

b Infantes ancientl! it meant children who couldn&t tal# butunder %ustinian it meant children under A !ears of age.

c "upilli children under ; !ears as regards males and those

under 7 !ears as regards females. In other words$ people whowere impubes were not legall! allowed to contract. However if

between A-; 1 A-7 of age the! could contract eclusivel! for

their advantage +and so cannot if the! are in power e2 b!

stipulation or b! accepting a donation the! could not bindthemselves to a contract which involved liabilit! alone or

reciprocal rights and duties without the auctoritas of their tutors.

The! could onl! benefit. In other words the! could bind others to

themselves but not bind themselves to others.d 0laves could not contract at all however the! could incur a

natural obligatione 0ons and other male decedents in power could not contract b!

civil law with their paterfamilias +the! could through natural

obligation. However the! could do so with an!one else providedthe! were above the age of pubert!. If below$ that age but above

A !ears$ the! could acquire for the paterfamilias but could not

bind themselves b! contract even with his authorit!.

f Interdicted prodigals could not bind themselves in contract butli#e pupils might stipulate for their own advantage.

g Independent persons under the age of 7> but above pubert! were

originall! capable of binding themselves without limit but thepraetor changed this. 8nder the empire minors + 7> who had

permanent curators were assimilated to pupilli with the result that

the! could not bind themselves b! contract without the consentof their curators. If a minor had no curator the old law continued

to appl!.

h 4omen In the old law women in potestate and manu could not

bind themselves b! contract. 4ith the disuse of manus marriagewomen were no longer subject to an! incapacit!.

i In contracts requiring spo#en form of words deafness and

dumbness were disqualifications +particularl! as regardsstipulation.

vi not voidable on the ground of fraud or fear.

a ;raud %$olus': This ma! be raised as a defence to an! action. )

contract procured b! fraud might be set aside b! restitution in

integrum and in bonae fidei contracts$ an! fraudulent dealing

7;


25/28


gave rise to an action on the contract. ,ver! #ind of cunning

tric#er! or contrivance practiced in order to cheat or deceive

another was actionable and declared the contract void ab initio./raud and /ear are tac#led in the same wa!.

b ;ear " &etus:This had the same effect of fraud as regards thebecoming void of the contract. This occurs when a person or

members of his famil! is threatened with serious evil if he does

not enter the contract. @uress in earl! law was tac#led so thatcontractstricti juris is valid. In Late (epublic though$ an )ctio

:etus could be invo#ed due to duress.

Operation of Contract

. 3o one can stipulate for another I cannot enforce a contract in which I have no

interest.

7. 3o one can promise for another ' cannot promise ) he will give < to 6.

However if ) has an interest then the will is valid. If not$ the severit! of this rulewas mitigated to a considerable etent in favour of ) and to a less degree to 6.

This is because ) acquires no right for he has no interest and 6 acquires no right

because he is not a part!.

*!I (asi Contract:

The essence of a contract is the agreement. 'ut in relation to quasi contracts there is noagreement. Muasi contracts usuall! have an analog! to particular contacts.

,egotiorum estio resembles :andatendebiti 0olutio resembles&utuum

Co


26/28


dominus had forbidden him to do$ ecept that he might be able to recover

the epenses so far as the dominus has been enriched b! it.

The gestor or agent was bound to both render account of his proceedings

and to act with e!acta diligentia.However if acted in an emergenc! he

was onl! liable for dolus.

The principle or the dominus was liable to cover the agent in respect of

epenses and liabilities usefull! incurred. This means that the gestor wasnot entitled to indemnit! unless what he did was in the circumstances a

right thing to do in the interest of the dominus. *ood intentions were not

enough. ,2 if a person decides out of good intention to restore a house of

his friend but b! doing so creates a greater burden on the dominus$ hecannot claim compensation because for negotia gesta the affair must be

managed beneficiall!. )ctions for the negotia gesta were the actio

negotiorum directa against the agent or the gestor and the actio

negotiorum contraria against the principal or the dominus.

2. ndebiti 0olutio

4hen a person has paid in error what he was not bound to pa!$ the law

la!s upon the person who has received pa!ment a dut! of restitution. Thepa!ment is not necessaril! in mone! b! can be an!thing which enriched at

the epense of another. The error would involve the belief that the

pa!ment is due and there would be no obligation to pa!. ) pa!ment in

error should be restitute. ) pa!ment is said to be undue if the2

a the debt does not eist +whether it never eisted$ cannot eist or ceased to

eist or has not come into eistence.b when it is made to a person who was not the creditor or who was not

entitled to receive pa!ment on his behalf.

c or when the one who paid was not the debtor nor was it in hisname.

In other words it seems obvious that the transferee must have acted in good faith$ morall!

and legall!. )ction for indebiti solutio was the condictio indebiti$ which might transform

itself$ according to the circumstances to condictio certae pecuniae or condictio triticariaor +but not in mutuum condictio incerti +the latter was used for eample to achieve

release from obligation.

Other quasi-contractual obligations are those which eist between tutor and pupil$ co-

owners$ co-heirs$ heir and legatee.

*!II Obligations from &elict:

There are two #inds of delicts public and private. 4hen referring to public delicts we

refer to crimes whilst when referring to the private ones we refer usuall! to torts. Here we

7=


27/28


will be dealing with delicts giving rise to a civil action onl!. The nucleus of Law of

@elict consists in three wrongs which from the earliest times had given rise to criminal or

civil process. These arefurtum +theft$ injuria +injur! in a special and technical sense anddamnum injuria datum +wrongful damage to propert!.

,ver! delict gives rise to an appropriate action but these are features which in principleare common to all actions e! delicto.

@elicts2. 'eing penal$ the! are not passivel! transmissible +to heirs Npenal

7. ) noal action lies if the delinquent is in power Nnoal

9. 6o-delinquents +complicit! are liable each severall! for the whole

penalt!. NcumulativeThe first point applies without restrictions to all delicts but the second and third points

appl! onl! to civil law delicts not so completel! to others.

)V$$$ #rtm * Rapina:

)ccording to "aulus furtum is the dishonest handling of a thing with a view to gain eitherof the thing itself or of the use or possession of it. Theft includes the dishonest element

+the theftuous intent or fraudulent intent$ the handling +the carr!ing awa! or larcen!$ the

thing itself +which should be movables$ minerals 0abinians said that this could alsoinclude land but this view did not prevail. /inall! there is the use or possession +the use

of a thing ma! be stolen$ as when a depositar! uses$ or a borrower misuses$ a thing

deposited or lent and the view to gain. ,2 if I lend to a third person a thing which has

been lent to me I commit theft because there is a #ind of gain in ma#ing a present of whatdoes not belong to me and so putting the person who receives it under an obligation to do

something in return. Theft alwa!s should ta#e place invito domino +against the will of the

owner. )ccording to Labeo there were 7 t!pes of furtum furtum manifestum andfurtum nec manifestum %and the rejectedfurtum conceptum andfurtum oblatum. 0ome

sa! that the thief is manifest when the thief is ta#en in he act$ others go further and

include the case of his being ta#en in the place where the theft is committed. Others gofurther still and include the case of the thief being ta#en before he has carried the thing

awa! to the place to which he meant to ta#e it and lastl! there were those who said that

theft is manifest whenever the thief is seen with the thing is his hands.

)n!one who helps another to commit a theft is a thief but his intervention must amount

to something more than just advice.

/enalties for theft:

4hen there is a manifest theft$ the Law of the


28/28


roman law of obligations (2)

Documents