Appunti Diritto romano

(CERCA NEL LIBRO)

 Civiles: the creditor could use a specific actio against the debtor

- Obligatioens iure civili / iure honorarium: Depends on the source of the obligations.

 Iure honorarium: The protection of tenants in the superficies was created in the

classical age (actio in factum in rem) example of actio created by the praetor. The

obligation of the person who gave the land which was enforceable with an action of

the iure honorarium

 Iure civili: The obligation of iure civili are enforced by actions of ius civiles

- Obbligationes stricti iuris / bonae fidei: We have to consider the aspects of the formula

given for the protection of the credit or to make enforceable the obligations.

 Bonae fidei: When we have the words bonae fidae the power of the judge is more

than in the other case where we have an actio strictly iuri, so this power of

evaluation for the judge is connected with the possibility requested to the debtor. Ex

of contracts based on the good faith is sale

 Stricti iuris: Not present the words bonae fidae

Source of obligations:

First 2 theories connected with Gaius who wrote in his institutions that the possible sources of

obligation were contracts and delict. The same Gaius in Res Quotidiane added a third category

called varie causarum figure that contains different forms of production of obligations that weren’t

one of the first 2. In the age of Justinian this third category was divided in 2 other categories: Quasi

contract and quasi delict

 

Contract An agreement that is enforceable at law. The specific requirement requested is

the agreement btw a minimum of 2 parties

 

Delict Civil wrongs established by the ius civile, we have 4 of them

 

Quasi – contract Situations that were strictly contractual because there was no

agreement btw the parties but just a lawful relationship, ex. solutio in debiti, where we have

a person who paid an amount of money for a mistake and the person who receives it

receives them also for mistake. In this case we have a birth of an obligations without an

agreement so the duty of the obligation is for the accepiens to restitute the amount to the

other person

 

Quasi – delict Praetorian wrongs, established by the praetor

Classification of contract:

Difference depends on birth of the contract

 The

Real contracts obligation arise from the delivery of the object for the contract. Loan

for consumption (mutum), loan for use (comodato), deposit, pledge and hypotec.

Not to be confused with the real rights which are the rights against everyone while in this

case the adjective real means the delivery of the thing, so different meaning.

 

Verbal contracts Birth by using specific words. Stipulatio (need of a specific question and

a specific answer) but also dotis dictio, promissio iurata liberti

 

Literal contracts Written document. Nomina transcripticia

 

Consensual contracts Sufficient a simple agreement btw the parties without specific

forms. These contracts were sale, letting and hiring, partnership, mandate. Based on the

good fate, introduced in the middle of republican age Tuesday 09/11/2021

General rules of contracts

The agreement (consensus) was the essential requirement of every contract, but a genuine

consensus might be lacking from one or both parties because of factors such as mistake (error),

duress (metus) and fraud (dolus). These rules where applied to all transactions but here we have a

specific consideration of these rules.

Types of mistakes:

Roman Prospective is closely connected with the ritual form of contracts. When the parties did

every form, the transaction produced legal effects. Since the middle of the Republican Age we

have a consideration of this defect of consensus and a list of relevant mistakes:

 

Mistaken transaction (error in negotio) Where one or both parties were mistaken about

the type of transaction intended. Ex. I believe to conclude a sale while he thinks to conclude

a hire. The effects of the contract could be denied by the praetor

 

Mistaken subject matter (error in corpore) When one or both parties were mistaken over

the identity of the thing that the object of the contract. Ex. I write the name of the wrong

slave I want. The praetor granted the party who did the mistake a specific remedy for

denying the effect of the contract

 

Mistaken identity (error in persona) Where one or both parties where mistaken about the

identity of the other party (only if the identity was relevant). Same rules of the previous

mistakes

 

Mistaken quality of the subject matter (error in substantia) When on or both parties were

mistaken over the quality of the thing that was the object of the contract. Considered

relevant only in specific case decided case by case by the jurisprudence. Ex. I believe to

receive gold instead I receive bronze

Duress

A contract was regarded as made under duress if a part had been threatened with “serious evil”

unless he consented to the contract; without duress the threatened party would not have

concluded the contract or would have concluded it on different conditions.

In the archaic period and the first half of the republican age duress was not considered as a defect

of consensus cause even if the party was threatened, he did conclude the contract. We have a

special protection for the threatened party when we consider the bonae fidei contracts because the

formula of the action had specific words in the intentio (ex fidae bona)



a) Stricti iuris contracts The contracts were initially valid, but then the magistrate granted

remedies to protect the threatened party which are:

 Exceptio metus: used when the victim of duress decided not to perform the

performance arising from the contract and so the other party with specific action

could enforce the obligation. Against this action the victim of the duress could use

the exceptio metus. The exceptio was a possessory part of the formula (we have 4

ordinary parts and 3 accesssory part). Exceptio useful for the opponent who in this

case was the victim of the duress who in the phase in iure in the moment called

contestatio would ask to the praetor to use this exceptio in the text of the formula.

The function of the exceptio is the same: if a negative condition of the fact described

in the ? of the claim of the plaintiff.

When the victim of the duress performs 5tthis performance and decided a second moment to use a

remedy granted by the praetor, he had to use one of the following 2:

 In integrum restitutio: Usual praetorian remedy with the usual function. Example of

this for the person who was not 21 years old (institute of cura minorum) where we

have an institute of restitution called propter aetatem for the age of the person who

could use this in integrum restitutio. In that case the function of this restitutio is to

grant the victim of duress to recover the ? in the property that he gave to the other

party for the performance of the contract

 Actio metus: Usuful for the victim of duress when he wants to punish the author of

the duress so the actio metus was a penal action and the author of the duress had

to pay a multiple of sum paid in the contract Ex. I pay a sum of 50 sestertius for the

contract under duress and with this actio the author of the duress was punished with

200 or a multiple of the value of the contract



b) Bonae fidei contract The judge could neutralize the effects of the contract thanks to the

specific words “ex fide bona” provided in the formula. The judge in the phase apud iudicem

had to give a decision based on the evaluation of behaviors of the parties on the good faith.

In opposition of the good faith enforce the consensus of the other party with the duress.

Fraud

A contract was regarded as made under fraud, if a party had used every kind of cunning, trickery or

contrivance practice in order to deceive another, with the aim of making him conclude a contract

that he would not have concluded or that he would have concluded under different conditions. The

defect of the consensus depends by a specific behavior of fraud committed by the other party.



a. Stricti iuris contract The contracts were initially valid, but then the magistrate

granted remedies to protect the threatened party

The first was used when the victim of fraud didn’t perform his performance arising

from the contract while the other 2 when the victim did perform his performance.

First 2 have the same function of duress the third one is different:

 Exceptio doli

 In integrum restitutio

 Actio doli: difference from actio metus cause in this case we have a sum of

condemnation established for the author of fraud is in the simple value of the

contract concluded by the victim of the fraud so no multiple of the original

value 

b. Bonae fidei contract The judge could neutralize the effects of the contract thanks

to the words “ex fide bona” provided in the formula

General rules of contracts - Cause (Causa)

 Not every agreement was a contract, but only those that were actionable at law.

 A specific rule said by Ulpian, jurist lived in the III century AD, said that for enforcing the

agreement a cause (causa) was needed. The cause was the socioeconomic function of the

contract. In mancipatio and in iure cessio we don’t have a specific cause established by

Roman Law. This is the reason why we say that those transaction are abstract (which

means that the transaction doesn’t have a specific causa). The transaction could be used

for several cause and not for only one. Ex. Use of mancipatio for different functions like

adoption, emancipatio and conventio in mano. Same for the use of in iure cessio. Normal

not to have a specific causa because the causa is strictly connected with the form of the

transaction so the important part was the respect of the form of the transaction.

 In some contracts (literal written contract and verbal contracts specific words) the

cause was represented by the form

 In the real contracts the cause related to the delivery of the thing but we have a specific

function known for this contract by the law for example the deposit was a real contract and

it’s important for the production of the legal effects the delivery of the property but the

specific function was not only the delivery, but the focus of the contract was the safe

keeping of the deposited property. (Book not that clear)

 In the consensual contracts the cause was related to the choices made in the economic

field in the third century BC because for this category we don’t have a specific form

requested by law and the only way to recognize a specific function for this contract is to

consider the function given by Roman Law for this contract. Ex. For the sale the specific

function is the exchange btw price and a thing.

 Sale important for economy because the mancipatio is too long

General rules of contracts - Capacity to act

 A contr