Contracts Created through Delivery (“Real Contracts”)

The Romans recognized four types of contracts that were formed through agreement together with the delivery of property: loan for consumption; deposit; loan for use; and pledge for debt. Each contract type has its own rules concerning the rights and duties of the two parties. This chapter sets out these rules and their general legal character. Among the topics of particular interest are the principles the jurists use to assign liability between the parties, the ability of the parties to transform one type of contract into another, and the efforts of the jurists to make these contracts more commercially useful.

Capacity to Contract

This brief chapter gives an overview of the diminished contractual capacity of some Romans: children, the insane, young adults, and women. The law is intended to protect them, but also those with whom they make contracts, some of whom may be unaware of their partners’ limited capacity. The role of guardians in authorizing transactions is emphasized. The material in this chapter is introductory, for students who have not previously studied the law of status; this law has important effects on the overall structure of Roman contract law. The subject matter is partially taken up again in Part A of Chapter VII, where the ability to acquire rights and duties through one’s dependents is examined.

Sale

This chapter, the longest in the Casebook, explores the critically important contract of purchase and sale (emptio venditio): its formation and requirements, the problem of mistake, the interpretation of sales agreements, the execution by seller and buyer, risk, liabilities for default, and warranties of title and against defects. The law of sale is intricate and is richly developed by the jurists, often with the aim of preventing buyers from being deceived or at least not fully satisfied with their purchases. Roman law does not distinguish strongly between sale of movables and immovable, but does recognize that some types of property (called res mancipi) may require a special procedure for transferring ownership.

Other Consensual Contracts

This chapter deals with the remaining three consensual contracts: lease/hire (locatio conductio); partnership (societas); and mandate (mandatum). While each contract has its own specific rules that are explored in some detail, the contracts have one major problem that is less acute in the case of sale: they are performed over time, and so raise difficulties if one party’s performance is delayed or deficient. The chapter examines how the problem was confronted in various contexts: the lease of dwellings and farms, of movables, and of slaves; construction contracts; partnerships for various purposes; and mandate, which gradually evolves from a gratuitous contract into a commercially more useful form.

Quasi-Contract

The jurists recognized that there were some situations in which a contract-like set of duties and obligations arose from circumstances involving no agreement between the parties. The two most influential forms of such “quasi-contract” are unauthorized administration of affairs (negotiorum gestio) and what is now called unjustified enrichment (actionable through the condictio). Although this body of law remained somewhat underdeveloped, it contains many important insights into Roman concepts of obligation. Particularly for unjustified enrichment, the jurists clarified when a benefit conferred upon one person at another’s expense can be reclaimed on the basis that the recipient has no legitimate basis for retaining the benefit.

Stipulation:

Stipulation, a formal oral contract by which a promissor unilaterally assents to a promise to give something to or do something for a promisee, is examined in detail in this chapter, especially as to how it was made, interpreted, and executed. The stipulation, despite its apparent clumsiness and its oral nature, was used by the Romans for a wide variety of purposes, many of which are described. The jurists tend to interpret stipulations through their exact words, so that it becomes extremely important for the parties to get the language of the promise correct. Other types of formal or unilateral promises are also examined.

Third-Party Rights and Responsibilities

Although Roman law never developed a true theory of agency, it did find ways to make one person contractually responsible for the acts of another, by using the family (persons under the power of a paterfamilias), the structure of business operations (those operating a business on behalf of an owner), and the structure of estates (supervisors of all or part). These devices permitted limited development of more complex businesses that were not directly owner-operated. Roman law also allowed for some delegation and assignment of contract rights and duties. While these developments undoubtedly assisted Roman enterprises, they were limited in their scope and effectiveness.

Filling in the Gaps

The Roman system of contracts left out of account many agreements that deserved enforcement, especially in a developed economy. The jurists clearly recognized the limits of their system, in particular the sometimes obscure boundaries of recognized contracts and the difficulty in recognizing new ones. For agreements that could not be accommodated, they eventually developed a rather awkward mechanism whereby, in principle, a contractual promise only became enforceable after one party performed its side, after which it could demand that the other party either carry out its promise or provide restitution of unjustified enrichment. This mechanism provides relief, but is obviously imperfect. Still, the jurists were at least willing to carry over from the recognized contracts some implied rights and duties.

Introduction to Roman Contract Law

The Introduction surveys the development of Roman contract law through the Edict of the Urban Praetor and the writings of the Roman jurists. Emphasis is particularly on three concepts central to the overall architecture of Roman contract law: consensus (agreement); bona fides (good faith); and, to a more limited extent, causa (cause or reason for contracting). The law of contracts is placed in the more general framework of obligation and debt. This rich intellectual heritage relates directly to the character of the Roman economy as it developed from the archaic period to the Empire. Finally, the introduction discusses late imperial handling of Roman contract law.