Roman Law
Law of Obligations Obligations
James Grech LL.B LL .B 1 st Ye Year
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R W LEE: The Elements of Roman Law Roman Law of Obligations Law of Obligations 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. incorporales. It is an incorporeal res. Thus an obligation belongs to the jus rerum of the Law of Things. However it creates a jus a jus in personam – personam – i.e. a right available against a specific person – not a jus a jus 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 to give$ 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 of pertaining to the sphere of proprietar! rights. It did no t include rights created from famil! relations or those created from public law. )ccording to *aius obligations included those rights and duties recognised b! the jus the jus civile. civile. %ustinian said that it includes some of the praetorian rights and duties. In fact whether a right is regarded or not as an obligation o bligation is a matter of usage rather than definition. Classification of Obligations:
1. Civil Civil and and prae praetor torian ian or honorar honorary: y: This mode of classification distinguishes obligations according to their source. It distinguished between those coming from the jus the jus 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 he ma#es no further use of it ecept for indicating the source or derivation of the obligation. 2. ! Contractu Contractu " #uasi #uasi ! Contract Contractu u " ! $elicto $elicto %&alefic %&aleficio' io' " #uasi #uasi ! $elicto: $elicto: These above are terms terms which distingui distinguish sh between the obligation obligationss on the basis of the wa! of establishing the obligation. There were those established e! contractu – on the basis of agreement$ those (uasi e! contractu ) on on the similarit! of an
Roman Law
Law of Obligations Obligations
agre agreem ement ent$$ thos thosee e! maleficio" maleficio"delict delicto o – ari arising sing from from a deli delict ct and (uas (uasii e! maleficio" maleficio"delic delicto to – arising from the analog! of a delict. )s *aius sa!s in the seco second nd boo# boo# of the *urea the disti distinct nction ion betwee between n obliga obligati tion on is threethree-fol fold d – Obligations arise from contract or from delict or b! special rules of law from various t!pes of cause. However this distinction can be objected. /irst because the obligations described as arising (uasi e! contractu seems to resemble obligations arising from contract merel! in having negative character of not arising from delict. delict. 0econdl!$ 0econdl!$ the distinction distinction between between the obligatio obligatio e! maleficio maleficio and obligatio (uasi e! maleficio has no logical foundations. However$ the two-fold distinction leav leaves es man! man! obli obliga gati tions ons unacc unaccou ount nted ed for. for. Thus Thus$$ the the thre threee-fo fold ld dist distin inct ctio ion n underlines those obligations created b! contract1agreement$ b! wrongdoing or b! an! other wa! which can&t be categorised with others. +. Civi Civill and and ,atu ,atura ral: l: ) civil obligation is one which is full! protected b! law and enforceable b! actio. 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$ which var! var! with with the the circ circum umst stanc ances es.. Thus Thus$$ alth althoug ough h a natur natural al obli obliga gati tion on is not not enforceable enforceable b! actio$ actio$ it ma! have legal consequences – e2 it can be transformed into into a civi civill obli obliga gati tion on b! novatio. novatio. However However these these legal legal conseq consequenc uences es var! var! according to the circumstances. The onl! common consequence for all cases of natural obligation is the eclusion of the condictio indebiti – 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 slav slaves es and and from from cont contra ract ctss betwe between en a paterfamilias and a filiusfamilias or between 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 the authorit! 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 obligations aris arisin ing g from from conve convent ntio ion n or agre agreem emen ent. t. )gre )greem emen ents ts were were not$ not$ stri strict ctl! l! spea# spea#in ing$ g$ actionable$ unless the! could be referred to one or other of four categories. )greements were made2 a Re – Re – b! the handing over of a res ) +(eal Obligation b -erbis ) b! ) b! a form of words – +5erbal Obligation c Litteris ) b! a special #ind of writing – +Litteral Obligation Obligation d Consensu ) b! ) b! agreement without an!thing further – +6onsensual Obligation. This was the classification in which the (omans categorised obligations.
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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 obligations 1 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$ one part! ma! have an immediate dut! and the other part! ma! have a contingent1conditional dut!.
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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 of the parties.
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6ontracts are formal or informal +or casual because the reason for the contract is irrelevant. ) 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 and so 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 was made. 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. This varies 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.
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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 one2 i $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 can perceive$ it indicates a complete obtuseness of mind and conduct. III Real Contracts:
This group includes four particular contracts. The! bear common elements which are the i 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!s satisfied. ,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 +lender bac# 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 loan and 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 the loan 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.
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Rate of nterest: The permitted rate of interest was variousl! defined at different periods. The law of the
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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 thing disappeared from a cause outside his control i.e. accidental cause +casus. 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 of a sic# slave who borrowed b! commodatum fell 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 the lender. +. $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 or accessories. )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 the depositor 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.
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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 the propert! was not returned on demand. b $epositum 0e(uestre: This was a deposit made b! two or more persons +not one of 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 d eposit conferred juristic possession b! quiritiar! title$ not merel! detention or possession but ownership. 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 the amount 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 its legal 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 of possession. '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 debt iii 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! the creditor 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. /or both 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!.
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*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 and 4usjurandum Liberti were of minor importance compared to 0tipulatio. $otis $ictio: This was a formal constitution of a dos made b! the woman herself$ an agnatic male descendant 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 reus stipulandi 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 arose from the earliest recorded form of the verbal contract consisting in the solemn formula B spondesne5 ) 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 changes however 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! concluded without the presence of the parties. The result then of a long process of development is that a contract effected b! a solemn form 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.
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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 character d 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 e stipulatio 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 also emplo!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 required b! 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 most respects 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. !II Sale:
0ale ma! be defined as a contract whereb! one person promises to transfer to another a thing 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 as soon 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:
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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 res being 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 the preator$ or because the! are legatees or fideicommissaries who have been let in possession in securit! of their claim. 0econdl! the seller must give vacant 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 abstracto but 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 third person$ 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 was used 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 proved defective. 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 for cover 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
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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 given to 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 and guarantees #nown as the dicta et promissa which 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 the guarantee 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 the vendor 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 the thing had defects which impaired its usefulness to the purchaser. In actio aestimatoria the 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 for general damages in an actio empti. In other cases he was limited to the remedies given b! the actio redhibitoria and the actio aestimatoria. $uties of the uyer:
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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 thing which 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$ is inconsistent 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 the purchase 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 vested in 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 agreed price. *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. !III Hire:
'! 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
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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. The contract 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 the locator and 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 and to 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 is someone 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 the other 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 an honorarium for their services b! means of the e!traordinaria cognito of the magistrates. )s regards the hiring of a thing $ in principle there was no difference between a movable and 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 shall allow 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:
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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 a decision 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! admitted of 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 no contract 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 is irrelevant. 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 into eistence 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
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. 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 in abstracto. 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 in the possession of the land be!ond the agreed time$ then it implied an automatic renewal of the contract. 7. b! mutual consent 9. 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 common purpose 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 relation between 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
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9. /artnership in a particular business ;. /artnership in farming the revenues + societas vegtigalis' – The (oman wa! of collecting taes$ particularl! the land-ta called vegtigal was 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 private partnerships 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. I give !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! horse dies$ 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 agreed b 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:
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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 that capitis 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 it obviousl! 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 survivors should 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 the partnership 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 the partnership either epressl! or tacitl! as b! selling his share in the partnership propert!. 'ut if he renounced unreasonabl! in breach of an agreement that the partnership 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 in matters 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 dissolved as 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 the mandatarius. 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
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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 mandatarius can 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 ii iii iv v vi
m!self alone +mea gratia m!self and !ou +mea et tua gratia m!self and a third part! +mea et aliena gratia !ou alone +tua gratia !ou and a third part! +tua et aliena gratia 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 valid because 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 gestor and as such the mandator acquired a personal liabilit! and consequent interest in the eecution of the mandate +mandatum (ualificatum or mandatum credendae pecuniae? 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 a matter 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 ecuse for 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 and culpa levis in abstracto. d to render accounts
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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 ii
iii
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? b! unilateral revocation or renunciation2 either b! the mandator$ before the mandatarius has done an!thing in the eecution of his commission or b! the mandatarius 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 to do it for him. 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! the heirs. 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 pactum conventum 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 fiduciae which was an element of *ood faith. /iducia does not occur ecept as an incident of the conve!ance of a person or a 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:
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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 two transactions +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 the beginning 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 part while 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 on one 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 in specie$ 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 sell them 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 con ductio 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. *III Pacts:
)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
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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 contract and 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 his implied 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 ii iii
an agreement to constitute a dos – an agreement to give a gift +pactum de constituende dote' ) made actionable b! Theodosius a promise to give + pactum dantionis – made actionable b! %ustinian 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! or priesthood 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 transferred propert! 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.
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*! Of Contract in 'eneral:
It is curious to sa! that there was a (oman law of contracts but no generalised law of Contract which 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 one part! 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 the contract has a certain content when in fact he has not. Thus an apparent agreement arises when a person thin#s he is contracting with a 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 he won&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#ing he 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 who should be contracting is crucial. In (oman Law$ the error in persona became actionable as regards most transactions. b rror in ,egotio2 This occurs when the part! understand different 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 the conditions 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.
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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 is ver! 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 essential qualit! 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 results differentl!$ 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 of substantia – 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 it intact. ,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! social engagement.
iii
able to create a legal obligation between the parties – The agreement must 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 actionable pact. 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 agreement must 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 is unlawful$ it is deemed to be impossible and thus void +e2 giving a res sacra.
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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# but under %ustinian it meant children under A !ea rs of age. c "upilli – children under ; !ears as regards males and those under 7 !ears as regards females. In other words$ people who were 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 bind themselves 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 obligation e 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 provided the! 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 but li#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 the praetor 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 consent of 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 marriage women were no longer subject to an! incapacit!. i In contracts requiring spo#en form of words deafness and dumbness were disqualifications +particularl! as regards stipulation.
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
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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 the becoming 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 that contract stricti 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 rule was 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 no agreement. Muasi contracts usuall! have an analog! to particular contacts. ,egotiorum estio – resembles :andate ndebiti 0olutio – resembles &utuum Co
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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 was not 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$ he cannot 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. The pa!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 b e 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 triticaria or +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$ coowners$ 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
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Law of Obligations
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 are furtum +theft$ injuria +injur! in a special and technical sense and damnum injuria datum +wrongful damage to propert!. ,ver! delict gives rise to an appropriate action but these are features which in principle are 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!. Ncumulative The 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 either of 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 also include 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 p resent of what does 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 and furtum nec manifestum % and the rejected furtum conceptum and furtum 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 go further 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
7A
Roman Law
Law of Obligations
7D
