Contract Flashcards

Question

What 3 things does the price need to be in sale?

Answer 1

1. must be in money 2. must be fixed (sufficiently certain) 3. must be real

Answer 2

* Conditional on discovering additional facts: a purchase ‘for what you paid for it’ or ‘for what I have in my cash box’ is valid because there is no uncertainty in price, but merely an ignorance to price * To be determined by a third party (G.3.140): if the parties leave the price to be determined by a thid party, some jurists view the sale as valid, others do not * J.3.23.1: if the price is left to the valuation of a third party, the contract is valid only if that person actually fixes the price, if he refuses or is unable to fix the price, the sale is void for lack of price

Answer 3

Gaius: * Sabinians thought that price could involve an exchange of things other than money * Proculians thought that price could only be money- an exchange would fit into a different type of contract (permutatio) Justinian: * J.3.23.2: confirmed that the price must consist of money * he valued legal certainty and removal of ambiguities

Answer 4

1. **privately ownable** --> but not by the buyer- you cannot buy that which you already own) 2. **sufficiently certain**--> if the buyer says "I will buy slave A or slave B" the vendor has the choice which slave (but if one dies, he has to give the other) --> identification of the origin in necessary: "5 bottles of wine *from your cellar*" 3. **must exist**--> difficulty arises when the thing is destroyed before the sale perfects --> see separate card on sale of future things

Answer 5

* Absurdly low prices: Ulpian- if a man hires in exchange in exchange for a single coin, there is no lease because this comes to resemble a gift * But low prices are acceptable: no rule that the price has to be adequate, except for land- sale of land for less than half its price is void

Answer 6

1. Sale of chance (emptio spei): contract perfects upon agreement, risk of the thing not coming into existence rests on the buyer (so this is a gamble) 2. Sale of an anticipated thing (emptio res speratae): perfects only if the thing comes into existence, risk of this not happening lies on the seller

Answer 7

J.3.23.3: once a sale is concluded, the risk of accidental loss immediately passes to the purchaser even before delivery- destruction or deterioration of the thing sold without the vendor’s fault falls on the purchaser, who must still pay the price--> however, any increase in value such as by alluvion benefits the purchaser, since the risk and gain go together

Answer 8

= hire 1. locatio conductio rei= hire of a thing 2. loactio conductio operis faciendi= hire of a piece of work (one-time deal) 3. locatio conductio operarum= hire of services (ongoing)

Answer 9

Locator * the person who lets out the thing * actio locati: used to claim what is owed to them e.g. rent Conductor * the person who hires the thing * actio conducti: can be used if the locator fails to fo their part e.g. if the thing is not provided

Answer 10

= hire of a thing * duties of locator= allow conductor enjoyment, reimburse costs for necessary maintenance * duties of conductor= pay the price, take care of the thing, return the thing in the same condition Risk lies on the locator- if the thing is damage/destroyed so that the conductor no longer dervies benefit, the conductor does not have to pay for the period of the term in which he had no enjoyment

Answer 11

= hire of a piece of work * duties of the locator= pay the price, accept the job once completed * duties of the conductor= to complete the job by the nominated date (or within a reasonable time) --> conductor had to finish the job to get paid, he could only claim the price without completing the job if he was prevented from doing so by a vis major

Answer 12

= hire of services * duties of locator= pay the wage * duties of conductor= perform the service --> conductor had to finish the job to get paid, he could only claim the price without completing the job if he was prevented from doing so by a vis major

Answer 13

G.3.155-3.156 Bonae fidei contract where we commission someone to do something for free/ as a favour - No valid mandate exists where a person is comission to act solely for their own benefit- these actions are considered to be be done by personal choice rather than instruction - mandator= giving the commission - mandatary= carrying out the commission

Answer 14

Justinian categorises mandates into 5 categories depending on who they benefit 1. The mandator alone 2. The mandator and mandatary 3. A third person 4. The mandator and a third person 5. The mandatary and a third person J.3.26.13= mandates must be gratuitous- if any remuneration is agreed upon, the arrangement is not mandate but letting and hiring

Answer 15

1. actio mandati contraria: enforce the duties of the mandator= reimburse necessary expenses and indemnity for losses incurred in proper execution 2. actio mandati directa: enforces the duties of the mandatary= perform task without excess and transfer

Answer 16

* G.3.148 * both parties have dominium * partnerships exist e.g. for property/ business --> the core duty is the sharing of profits and losses: originally there was equal division of both, equality remained the default position, but possible to vary by express agreement between partners

Answer 17

1. Actio pro socio= enforced all obligations arising from the partnership e.g. sharing profits and losses 2. Actio communi dividundo= for division of assets

Answer 18

Over time Roman law recognised consensual contracts: sale (emptio venditio), hire, partnership, mandate, these required mere agreement, not form--> this development was crucial for commerce

Answer 19

“binds another person to give, do, or perform something for us”

Answer 20

Justinian’s fourfold classification of contracts is unsatisfactory- it does not take account of other agreements that undoubtedly had a contractual effect e.g. pacts--> “it may be that Justinian was unwilling to disturb the superficially attractive symmetry of a fourfold classification”

Answer 21

Roman contract law evolved toward seeing agreement as essential, but it never reached the modern idea that every agreement is automatically a contract

Answer 22

It is implicit in the nature of reality that there are more types of transactions than names for them

Answer 23

Pacts could not create actions, only provide defences

Answer 24

4 instances of contractual liability: 1. Permutatio (exchange)- in sale there is a dispute about the need for a monetary price e.g. could a coat be given as payment for a tunic, the legal schools were divided, some said this was an exchange, others said it was a sale so it came to be seen as a distinct contractual situation- as in an exchange is was impossible to determine buyer vs seller 2. Aestimatum (Brokerage)- X sells something on behalf of Y and takes a monetary cut, if X could not find a buyer, he would simply have to return the thing to Y 3. Precarium (Grant at Will)- Holding a thing (normally land, but not necessarily) gratuitously, but only at the will of the grantor 4. Transactio (Compromise of a Legal Dispute)- A agrees to drop his actio in return for something

Answer 25

1. Pact adiecta: modifications of contractual obligations- if entered into at the same time as the contract they are enforceable as part of the contract, if entered into after the main contract, only enforceable as a defence 2. Pact vestita: freestanding pacts, enforceable by action as well as defence e.g. constitutum: promise to pay an existing debt at a fixed time 3. Recepta: special transactions; enforceable by actio receptita e.g. innkeeper guarantees the safety of a client’s goods

Answer 26

Their historical development was controversial- early empire, they covered transactions resembling established contracts yet not fitting neatly within them By Justinian, it was accepted that where an agreement fell outside nominate forms, performance by one party created a bonae fidei obligation on the other

Answer 27

1. condictio= applied when there had been performance on only one side of the agreement, did not enforce performance, just a claim for restitution 2. actio praescriptis verbis= enforced performance not just restitution, applied when only one side of the agreement was carried out (added by the praetors)

Answer 28

* If the thing is of such as nature that it cannot be given/ owned e.g. a free man * If the thing does not/ cannot exist * If a condition cannot be fulfilled/ is impossible e.g. touching the sky * If a person stipulates for his own property * If a person’s answer is not in accord with the question * If we stipulate on behalf of one to whose power we are not subjected e.g. if a person stipulates for a sum to be given to himself, and to someone to whose power he is not subjected--> the schools are divided on this- some thought it was valid for the whole amount (and the whole is due to the stipulator alone as if he had not added the third person) however the opposing school believe that half is due to him and for that the stipulation is ineffective * If either party is of unsound mind because he does not understand what he is doing

Answer 29

G.3.97-106

Answer 30

* A verbal obligation entered into between absent persons is ineffective * Documents showing that the parties were present are to be in all cases believed, unless he proves that either he or his opponent was in some other place during the whole of the day on which the document was prepared

Answer 31

If a promise is made for an immoral or unlawful purpose, it has no legal effect and no obligation is created

Answer 32

If a written document says someone ‘promised’- the law treats it as if the formal stipulation procedure had taken place

Answer 33

If someone stipulates that such a thing will be given to him in a certain month/ year, he cannot sue until the whole year/ month has elapsed

Answer 34

* The purchase of a sacred/ religious or public place is void if you know that its sacred/religious/public * However if deceived by the vendor, he will have an action on the purchase- he will be entitled to damages for the loss he has sustained through the deception

Answer 35

Texts are unclear about what type of mistake nullifies a contract, but contracts did require strict consensus which is easily vitiated through a mistake Types of mistake which could nullify: * **Mistaken transaction** e.g. A intended sale, B intended hire * **Mistaken subject matter**- one or both of the parties were mistaken over the identity of something which was central to the contract, if the mistake was about a peripheral detail, then it did not nullify the contract * **Mistaken identity**- one or both of the parties were mistaken about the identity of the other, this only applies where their identity is relevant to the contract

Answer 36

“the texts on mistakes about quality are far from clear and may have been the object of some interpolation. They reveal some disagreement among the jurists”

Answer 37

Roman contract law lacked “fundamental unifying principle” other than the necessity for an agreement

Answer 38

Contract made under duress involved threats of ‘serious evil’ to secure consent, duress did not automatically invalidate all contracts- it depended on the type of contract --> where physical force was used, there was no true consent and the contract was invalid

Answer 39

Any kind of deception used to induce another into a contract * Did not originally invalidate stricti iuris contract In bonae fidei contracts, fraud was automatically considered by the judge * In practice, If fraud caused a mistake that invalidated a contract, the failure was treated as mistake rather than fraud

Answer 40

* Contract was only valid if the parties had legal capacity * Capacity rules followed roman law on persons and status * Lack of capacity prevented valid contractual obligations from arising

Answer 41

* Agreements to perform illegal or immoral acts were invalid * In the Republic, illegality was tested by whether performance breached the law; later, legislation increasingly imposed invalidity

Answer 42

* Initial impossibility: if performance was impossible at the time of the agreement, no obligation arose, physical or legal impossibility prevented a valid contract * Supervening impossibility: where performance became impossible after contract formation, liability depended on fault- if the promisor was not at fault, the obligation could be extinguished

Answer 43

* Roman jurists interpreted “impossibility” narrowly and pragmatically. The decisive issue was whether the object of performance could exist or be performed in the real world, not whether performance later became difficult or unprofitable * In contrast, situations where performance is merely hard, costly or dependent on uncertain future events do not invalidate the obligation- they fall under the debtors assumed risk

Answer 44

* mistake * duress * fraud * capacity * illegality/ immorality * impossibility

Answer 45

1. Error in corpore 2. Error in substantia 3. Error in negotio

Answer 46

Mistake as to the **thing** being sold NB: Ulpian notes that mere disagreement over the name but agreement on the actual thing does not negate the sale

Answer 47

Mistake as to **fundamental qualities**- when “one thing has been sold as another”-Ulpian It has been controversial to establish what is considered fundamental, but generally if two things are in a different commercial category, they fundamentally different

Answer 48

Mistake regarding the **nature** of the transaction e.g. I think hire, you this sale

Answer 49

Consensus (agreement) was essential to every contract- consent had to exist at the moment of conclusion and reflect a genuine meeting of minds

Answer 50

Roman law adopts a balanced and **pragmatic** approach- not every minor error invalidates a contract, only those errors that prevent true consensus are legally relevant Mistake: Roman law does not operate with a general doctrine allowing contracts to be voided for mistake. Instead, it asks whether the mistake prevents agreement on an essential element of the contract

Answer 51

* transactions concluded under fear were generally formally valid, and relief was provided through praetorian remedies, not through automatic nullity * The fear had to be grave, typically involving threats to life, physical integrity, or serious harm, and assessed by reference to a reasonable person

Answer 52

* Legal protection against coercion became necessary because formal transactions could be perfectly valid in form while being substantively unjust due to fear induced by threats * Zimmerman highlights this in the social and historical and social context- the pervasive violence and intimidation of the late Roman Republic and early Empire

Answer 53

* The judge was instructed (in the formula) to apply the strict law- had to apply the law literally * No care for fairness * e.g. you promise to pay someone 100 coins, the judge asks ‘did you promise 100 coins?’, if yes--> you pay

Answer 54

* Judge was instructed to follow good faith principles * Flexible approach- based on fairness * Consensual contracts rested upon good faith * Bilateral contracts--> bonae fidei actions

Answer 55

* All consensual contracts: emptio venditio, locatio conductio, societas, mandatum * 3 of the 4 real contractd: commodatum, depositum, pignus

Answer 56

Bilateral and bonae fidei contract Duties of the borrower: - use property for agreed purpose - return the property in same condition Duties of the lender: - allow borrower use for agreed period of time--> if the borrower misused the property, the lender could recover it immediately - reimburse expenses

Answer 57

* unilateral and stricti iuris * duty to restore: - had to return equivalent - “the debtor is not allowed to give back something which, though of the same kind, is of inferior quality, for example, new wine for old”- Pomponius - If the property was lost or stolen, the borrower still had a duty to restore it (since it’s a stricti iuris contract) - lender has no duties since it is unilateral --> could be enforced by condictio

Answer 58

* stipulatio (oral contract) * nomina transcripticia (written contract) * mutuum (real contract)

Answer 59

* Seller is liable for intentional harm (dolus) * Expected to show the level of care of the bonus paterfamilias (greater standard of care than one would show for their own property) * Mora: the concept that if I agree to give you the cow by thursday, up to Thursday I am expected to be held to the bonus paterfamilias however for any time after you are liable for anything that happens (if it is your fault that the thing hasn’t been delivered)

Answer 60

1. take care of the res until delivery 2. deliver the res 3. guarantee against eviction 4. warrant against defects

Answer 61

* Where fruits were produced in the window between perfection and delivery, they had to be delivered to the buyer as well * The buyer is subject to the risk and potential benefit of the land: “Even if the whole field be inundated by a river after the sale, the risk is on the purchaser; he is, therefore, entitled to any benefit which may accrue.”- Paul in the digest

Answer 62

1. **Stipulatio habere licere** – stipulatio for the price if evicted- this applies to smaller items of lower value 2. **Stipulatio duplae** – stipulatio for double the price if evicted- applies to res mancipi--> this applies to things of higher value --> it came to be seen as bad faith to refuse to offer one of the two stipulatio guarantees, by the time of Classical law, the stipulatio duplae was the most common and so it was often implied rather than expressly agreed

Answer 63

* Where macipatio occurred- **actio auctoritatis** for double the price * Any other sale- **actio empti or actio ex stipulatu** for the quantum under the stipulatio

Answer 64

* **Actio auctoritatis**: if the buyer loses the thing to eviction after formal transfer, the seller had to pay double the price (only applies for mancipatio) * **Stipulatio duplae**: because protection was limited, parties began adding a special promise- the seller had to pay double the price i eviction occurred- this became common practice and strengthened buyer protection * **The actio empti** (general remedy)- later classical law used the general action for sale, the seller became liable for the buyer’s ‘interest’ (any loss suffered), this included price paid, additional financial losses- the buyer was places in the same position he would have been if eviction had not happened--> marks a shift from strict formal rules to broader fairness Justinian’s law- protection became a normal part of contract for sale

Answer 65

* Originated in Aedilician (magistrates who regulated markets) edict: provisions relating to defects in slaves sold in open market, these were then extended to include livestock later on * Sellers had to display on a board a statement of any physical defects, and other defects for slaves e.g. if they had ever ran away * Eventually the Aedilician liability was extended to sales outside of the market and Justinian extended it to sales of every kind of thing, including land

Answer 66

- If before two months you remember that the seller did not promise there were no defects, you can bring an actio rehibitoria--> this means you give the thing back and the seller gives the money back - If before 6 months, you remember that the seller did not promise there were no defects, you can bring an actio quanti minoris--> that gets you the difference in value but you keep the thing

Answer 67

Does not need to be claimed: * patent (obvious) defects- Ulpian states that the edict does not cover defects that would be obvious upon purchase--> the purpose of the edict is to ensure the buyer is not deceived * Excludes trivial physical ailments: Ulpian gives the examples of a minor flaws such as a flight fever or an old illness or a trivial wound * Excludes mental defects Does need to be claimed: * disease= “unnatural physical condition whereby the usefulness of the body is impaired for the purposes for which nature endowed us with health” (Ulpian in the digest)- this may affect the whole body or just part of it * Covers temporary illnesses: Ulpian- “Pomponius correctly says that this edict concerns not only chronic diseases but also those which are temporary in effect”

Answer 68

1. pay the price 2. to recieve the res 3. to reimburse expenses

Answer 69

The **actio venditi** can be used to enforce the performance of the ‘something else’ e.g. If I have sold you an apartment block for a fixed sum of money and an undertaking to repair another block of mine, I will have an actio venditi to enforce the repair.- Pomponius

Answer 70

The buyer bore the costs of safeguarding the property between contract and delivery so the seller could recover any expenses incurred e.g. - care for a sick slave - repairs/ improvements to property

Answer 71

1. Dolus= intentional harm, bad faith 2. Culpa= fault/ negligence 3. Custodia= liability for all loss not caused by vis major (acts of god) 4. Mora= failing to discharge a duty/ wrongful delay in discharging a duty

Answer 72

* Culpa levis in abstracto – objective standard – the care of the bonus paterfamilias * Culpa levis in concreto – subjective standard – the care D takes in his own affairs

Answer 73

Actio auctoritatis- if a third party sucessfully vindicated the property, the buyer was entitled to double damages--> this was implied within a mancipatio

Answer 74

1. actio auctoritatis: implied within mancipatio (Gaius)- the displaced buyer would be entitled to double damages 2. stipulatio duplae: mancipatio no longer exists, this promise allows the displaced buyer to claim double damages 3. actio empti (general remedy): later classical law used the general action for sale, the seller became liable for the buyer’s ‘interest’ (any loss suffered), this included price paid, additional financial losses- the buyer was places in the same position he would have been if eviction had not happened

Contract Flashcards

(98 cards)