Roman Contract Law: A Comprehensive Guide
Roman Contract Law
Consensual Contracts
Source
Consent of the parties regarding the delivery obligation, not necessarily involving a physical item.
Features
- Expression of will
- Consensual obligation by consent of the parties (e.g., sale, lease, partnership, mandate)
- Creates obligations and rights enforceable by both parties
- Arises from consensual agreement and ends by various means (e.g., error, fraud, duress)
Execution and Unfulfilled Contracts
One party can refuse to perform if the other party doesn’t fulfill their obligations. A valid contract includes three elements: Conclusion (agreement), Perfection (necessary conditions present), and Enforcement.
Purchase and Sale
A seller agrees to transfer legal ownership of an item to a buyer, who, in turn, is obligated to pay a price.
Duties
- Seller: Deliver the item
- Buyer: Pay the agreed price
Evolution
- Barter: Exchange of goods
- Mandate: Delivery of the item
- Stipulation: Formal promise to comply
- Good faith obligations beyond the delivery of the item
Requirements
- General legal capacity (e.g., curators cannot buy property they manage)
Elements of the Purchase and Sale Contract
- Thing: Can be sold or not (e.g., inalienable property)
- Sale of expected goods: Payment is due even if the goods do not materialize
- Price: Sum of money
- Consent: Agreement between the parties
Proof of Consent (Arras)
A quantity delivered to the buyer by the seller as proof of consent.
Effects of the Contract
- Buyer: Pays the price; if late, pays interest. Bears the risk of loss.
- Seller: Transfers possession and custody, liable for fraud and defects.
The seller must guarantee against defects (Law of the Twelve Tables) and disclose any flaws, or pay double the price within six months or reduce the price within a year.
Lease
A lessor agrees to provide a lessee with the use of a thing for a specific time in exchange for payment, with the thing returned at the end of the term.
Obligations
Bilateral contract with reciprocal obligations, transferable to heirs.
Elements
- Thing: The object of the lease
- Price: Must be real and certain
- Consent: Agreement on the thing and the price
Classes of Lease
- Lease of things: Use of a thing for a certain time for payment
- Lease of services: A person provides services for a salary
- Lease of work: The lessee performs work on a thing provided by the lessor
Effects and Termination
The lessor is responsible for defects that prevent use. Termination occurs due to loss of the thing, end of term, non-payment, or unsuitability of the thing. It does not end with sale or donation.
Renewal and Eviction
Renewal can be tacit or express. Eviction is the lessor’s right to reclaim the property.
Contract of Carriage
Involves the transport of goods. In case of loss, the owner must compensate for lost goods proportionally to the value of the saved vessel and cargo.
Partnership
Two or more people pool resources or services to achieve a common goal.
Requirements
- Contributions from each partner
- Common, lawful goal
- Agreement to share profits and losses
- Continuous consent
Types of Partnerships
- Universal partnership: All assets are pooled
- Partnership of profits: All profits are shared
- Partnership for a specific business: Specific goods or activities are pooled for a particular purpose
Effects and Dissolution
Partners must fulfill promises and share profits/losses. Dissolution occurs by agreement, expiration of term, partner withdrawal, or loss of property.
Mandate
An agent agrees to manage the affairs of a principal gratuitously or for a fee.
Requirements
- Management of the principal’s affairs
- Acceptance by the agent
- Gratuity or fee
Duties and Effects
The agent must act as agreed, be accountable, and responsible for wrongdoing. The principal must reimburse expenses.
Termination
Termination occurs by mutual agreement, death of the principal, or renunciation.
Private Crimes
Unlawful conduct affecting private individuals, initially addressed by revenge.
Characteristics
- Monetary penalty to the victim
- Victim initiates legal action
Roman Action Features
Cumulative penalties, transferable liability.
Specific Crimes
- Theft (furtum): Unlawful taking of property
- Robbery (rapina): Theft with violence
- Injury (injuria): Physical harm
- Damage to Property: Covered by the Aquilian Law
Quasi-Contracts
Obligations arising from lawful acts without agreement.
Types
- Negotiorum gestio: Managing another’s affairs without authorization
- Undue payment (solutio indebiti): Payment made in error
Extinction of Obligations
Methods
- Payment: Fulfilling the obligation
- Compensation: Offsetting debts
- Novation: Substituting a new obligation for an old one
- Transaction: Settlement of a disputed debt
- Confusion: Creditor and debtor become the same person
- Prescription: Extinction due to the passage of time
Transmission of Obligations
Methods
- Delegation: Transferring the obligation to a third party
- Assignment: Transferring ownership of the obligation