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Contract Notes

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Roman Contract Law

19:14

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: Unilateral - obligation is on one side Bilateral - on both sides 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:

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: Duress - the contract was, in early law, technically valid. But the exceptio and actio metus were introduced, which granted a remedy for recourse. 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.

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