OBLIGATIONS VERBAL CONTRACTS

Transcription

1 OBLIGATIONS VERBAL CONTRACTS

2 Obligations: The Sources G First let us consider those that arise from contract. Of such there four kinds: for an obligation by contract arises either by a thing (re), by words (verbis), by letters (litteris), or by consent (consensu).

3 Obligations: The Sources G First let us consider those that arise from contract. Of such there four kinds: for an obligation by contract arises either by a thing (re), by words (verbis), by letters (litteris), or by consent (consensu).

4 The verbal contract The rituality of stipulation The Form Advantages/Disadvantages Certain/Uncertain Causality and Stipulation Causality vs. Abstraction

5 92. An obligation is verbally contracted by question and answer, as for instance: DARI SPONDES? SPONDEO!; DABIS? DABO!; PROMITTIS? PROMITTO!; FIDEPROMITTIS? FIDE PROMITTO!; FIDEIUBES? FIDEIUBEO!; FACIES? FACIAM! "Do you solemnly agree to give it to me?" "I do solemnly agree." "Will you give it?" "I will give it." "Do you promise?" "I do promise." "Do you pledge your faith?" "I do pledge my faith." "Do you guarantee?" "I do guarantee." "Will you do this?" "I will do it."93. The verbal obligation contracted by the expressions, "Do you solemnly agree to give?" "I do solemnly agree to give," is peculiar to Roman citizens; the others belong to the Law of Nations, and therefore they are valid among all men, whether they are Roman citizens or aliens. And even if they are uttered in the Greek language they are still valid, for instance: δώσεις ; δώσω ὁ,ολογεῖς ; ὁ,ολογῶ 2ίστει κελεύεις ; 2ίστει κελεύω 2οιήσεις ; 2οιήσω, so far as Roman citizens are concerned, if they understand Greek; and on the other hand, although they may be stated in Latin, they will, nevertheless, be binding on foreigners, provided they are familiar with the Latin language.

6 The ritual and its disadvantages

7 The ritual and its disadvantages Is a simple agreement enough to create an obligation?

8 The ritual and its disadvantages Is a simple agreement enough to create an obligation? What about a written document?

9 The ritual and its disadvantages Is a simple agreement enough to create an obligation? What about a written document? Only if their content is the typical of one of the consensual contracts (sale, hire, mandate, partnership); otherwise, nudum pactum obligationem non parit (a mere pact does not bear an obligation), so a ritual is needed:

10 The ritual and its disadvantages Is a simple agreement enough to create an obligation? What about a written document? Only if their content is the typical of one of the consensual contracts (sale, hire, mandate, partnership); otherwise, nudum pactum obligationem non parit (a mere pact does not bear an obligation), so a ritual is needed: 'Decem mihi dari spondes?' spondeo

11 The ritual and its disadvantages Is a simple agreement enough to create an obligation? What about a written document? Only if their content is the typical of one of the consensual contracts (sale, hire, mandate, partnership); otherwise, nudum pactum obligationem non parit (a mere pact does not bear an obligation), so a ritual is needed: 'Decem mihi dari spondes?' spondeo Disadvantages?

12 The ritual and its disadvantages

13 The ritual and its disadvantages What if the stipulation is more complicated?

14 The ritual and its disadvantages What if the stipulation is more complicated? cautio usufructuaria, cautio rem pupilli salvam fore

15 The ritual and its disadvantages What if the stipulation is more complicated? cautio usufructuaria, cautio rem pupilli salvam fore What if the parties live in different cities?

16 The ritual and its disadvantages What if the stipulation is more complicated? cautio usufructuaria, cautio rem pupilli salvam fore What if the parties live in different cities? Writing?

17 The ritual and its disadvantages What if the stipulation is more complicated? cautio usufructuaria, cautio rem pupilli salvam fore What if the parties live in different cities? Writing? it can be added to the oral ritual, but not replace it: not constitutive.

18 The ritual and its disadvantages What if the stipulation is more complicated? cautio usufructuaria, cautio rem pupilli salvam fore What if the parties live in different cities? Writing? it can be added to the oral ritual, but not replace it: not constitutive. How to contract an obligation inter absentes?

19 The ritual and its disadvantages What if the stipulation is more complicated? cautio usufructuaria, cautio rem pupilli salvam fore What if the parties live in different cities? Writing? it can be added to the oral ritual, but not replace it: not constitutive. How to contract an obligation inter absentes? Subjects in potestate

20 The rational behind the ritual

21 The rational behind the ritual Could one of the parties argue that he had really not agreed? That his intention in fact was not entering the contract? The agreement is made indisputable. It prevents a possible lack of consideration.

22 The rational behind the ritual Could one of the parties argue that he had really not agreed? That his intention in fact was not entering the contract? The agreement is made indisputable. It prevents a possible lack of consideration. Could one argue that ten had been promised only on the assumption that a certain service be provided in turn (CONSIDERATION)? The content is fixed indisputably, and separated from the previous negotiations

23 The rational behind the ritual Could one of the parties argue that he had really not agreed? That his intention in fact was not entering the contract? The agreement is made indisputable. It prevents a possible lack of consideration. Could one argue that ten had been promised only on the assumption that a certain service be provided in turn (CONSIDERATION)? The content is fixed indisputably, and separated from the previous negotiations Comparison to the modern contractual system

24 The rational behind the ritual Could one of the parties argue that he had really not agreed? That his intention in fact was not entering the contract? The agreement is made indisputable. It prevents a possible lack of consideration. Could one argue that ten had been promised only on the assumption that a certain service be provided in turn (CONSIDERATION)? The content is fixed indisputably, and separated from the previous negotiations Comparison to the modern contractual system Why not an unilateral form? I promise...

25 VERBAL CONTRACTS APPLICATION Creation of an abstract obligation Versatility esp. to guarantee specified (and otherwise non executable performance): cautio usufructuaria, penal stipulation Collateral (personal guarantee)

26 VERBAL CONTRACT as a collateral

27 VERBAL CONTRACT as a collateral

28 VERBAL CONTRACT as a collateral SPONSIO FIDEPROMISSIO FIDEIUSSIO

29 VERBAL CONTRACT as a collateral SPONSIO FIDEPROMISSIO FIDEIUSSIO item spondes? spodeo! item fide promittis? fide promitto! item fide iubes? fideiubeo!

30 VERBAL CONTRACT as a collateral SPONSIO FIDEPROMISSIO FIDEIUSSIO item spondes? spodeo! item fide promittis? fide promitto! item fide iubes? fideiubeo! citizens everyone

31 VERBAL CONTRACT as a collateral SPONSIO FIDEPROMISSIO FIDEIUSSIO item spondes? spodeo! item fide promittis? fide promitto! item fide iubes? fideiubeo! citizens everyone only verbal contracts all obligations (inc. natural)

32 VERBAL CONTRACT as a collateral SPONSIO FIDEPROMISSIO FIDEIUSSIO item spondes? spodeo! item fide promittis? fide promitto! item fide iubes? fideiubeo! citizens everyone only verbal contracts all obligations (inc. natural) extinguished by death (or after two years by the virtue of Lex Furia) inheritable

33 Certum / Incertum

34 Certum / Incertum (a) Do you promise HS? I do (b) Do you promise me damages if your wall falls over my property? (c) Do you promise to build for me a house on the Cornelian estate?

35 Certum / Incertum (a) Do you promise HS? I do (b) Do you promise me damages if your wall falls over my property? (c) Do you promise to build for me a house on the Cornelian estate? Differences?

36 Certum / Incertum (a) Do you promise HS? I do (b) Do you promise me damages if your wall falls over my property? (c) Do you promise to build for me a house on the Cornelian estate? Differences? (a) dare certum

37 Certum / Incertum (a) Do you promise HS? I do (b) Do you promise me damages if your wall falls over my property? (c) Do you promise to build for me a house on the Cornelian estate? Differences? (a) dare certum (b) dare incertum

38 Certum / Incertum (a) Do you promise HS? I do (b) Do you promise me damages if your wall falls over my property? (c) Do you promise to build for me a house on the Cornelian estate? Differences? (a) dare certum (b) dare incertum (c) facere

39 Certum / Incertum (a) Do you promise HS? I do (b) Do you promise me damages if your wall falls over my property? (c) Do you promise to build for me a house on the Cornelian estate? Differences? (a) dare certum (b) dare incertum (c) facere Divisibility?

40 Certum / Incertum (a) Do you promise HS? I do (b) Do you promise me damages if your wall falls over my property? (c) Do you promise to build for me a house on the Cornelian estate? Differences? (a) dare certum (b) dare incertum (c) facere Divisibility? (a-b) divisible, (c) indivisible. Consequences?

41 Certum / Incertum (a) Do you promise HS? I do (b) Do you promise me damages if your wall falls over my property? (c) Do you promise to build for me a house on the Cornelian estate? Differences? (a) dare certum (b) dare incertum (c) facere Divisibility? (a-b) divisible, (c) indivisible. Consequences? Further: (a) claimed by actio certi (condictio), (b-c) by actio (incerta) ex stipulatu.

42 Certum / Incertum Actio certi (condictio certae creditae pecuniae: the same as in case of a loan for consumption (mutuum) and literal contract Actio incerti (actio ex stipulatu) both STRICTI IURIS!

43

44 Certum Incertum

45 Certum Incertum As A has promised sth If it appears that A ought to give [on the basis of civil law] 10 to B... indeterminate to B, whatever for that reason A ought to give or perform in favour of B [on the basis of civil law]

46 Certum Incertum As A has promised sth If it appears that A ought to give [on the basis of civil law] 10 to B... indeterminate to B, whatever for that reason A ought to give or perform in favour of B [on the basis of civil law]... let the judge condemn...

47 Certum Incertum As A has promised sth If it appears that A ought to give [on the basis of civil law] 10 to B... indeterminate to B, whatever for that reason A ought to give or perform in favour of B [on the basis of civil law]... let the judge condemn... A in favour of B for for whatever shall be the case-matter.

48 Certum Incertum As A has promised sth If it appears that A ought to give [on the basis of civil law] 10 to B... indeterminate to B, whatever for that reason A ought to give or perform in favour of B [on the basis of civil law]... let the judge condemn... A in favour of B for for whatever shall be the case-matter. If it does not appear, let the judge absolve

49 Certum Incertum The role of the judge Incertum: litis aestimatio on the basis of the interest Certum: on the basis of the true price. pluris petitio;

50 Do you promise ten modii of best quality African wheat?... ten modii of African wheat? or the Cornelian estate?... to give me right of way on the Cornelian estate?...african wheat?... not to prevent my crossing... the wine you keep in your through the Cornelian estate? cellar?... the usufruct over the Cornelian... to give me your copy of Julian's estate? Digesta?... your share of ownership on... to give back the book you have Stichus? borrowed from me?... an interest rate of 8 % on the... to give me a Gaulish gladiator money you have borrowed? slave?

51 Condicio and dies

52 Condicio and dies Titius: Do you promise to give me Stichus on the next kalends of January? If you don t, do you promise to give me 1000? - Caius: I do

53 Condicio and dies Titius: Do you promise to give me Stichus on the next kalends of January? If you don t, do you promise to give me 1000? - Caius: I do Can Titius claim anything before the kalends of January?

54 Condicio and dies Titius: Do you promise to give me Stichus on the next kalends of January? If you don t, do you promise to give me 1000? - Caius: I do Can Titius claim anything before the kalends of January? If Caius gives the slave before the kalends of January, can he claim him back? What, If he gives the 1000?

55 Condicio and dies Titius: Do you promise to give me Stichus on the next kalends of January? If you don t, do you promise to give me 1000? - Caius: I do Can Titius claim anything before the kalends of January? If Caius gives the slave before the kalends of January, can he claim him back? What, If he gives the 1000? 'on the next kalends of January', dies; 'if you don't (fulfil the obligation)' condicio.

56 Condicio and dies Titius: Do you promise to give me Stichus on the next kalends of January? If you don t, do you promise to give me 1000? - Caius: I do Can Titius claim anything before the kalends of January? If Caius gives the slave before the kalends of January, can he claim him back? What, If he gives the 1000? 'on the next kalends of January', dies; 'if you don't (fulfil the obligation)' condicio. Dies suspends the action, condicio the obligation itself. What kind of stipulatio sub condicione is the second one?

57 Condicio and dies Titius: Do you promise to give me Stichus on the next kalends of January? If you don t, do you promise to give me 1000? - Caius: I do Can Titius claim anything before the kalends of January? If Caius gives the slave before the kalends of January, can he claim him back? What, If he gives the 1000? 'on the next kalends of January', dies; 'if you don't (fulfil the obligation)' condicio. Dies suspends the action, condicio the obligation itself. What kind of stipulatio sub condicione is the second one?

58 Stipulation and its cause Before leaving Rome for a long journey, Titius, diffident of his own slaves, entrusts his most valuable possessions to his neighbour Caius. In the political turmoil of the late Republic, Titius and Caius fall in enemy sides. Caius, his own possessions having been confiscated by the enemy, now refuses to give back Titius' unless a high amount of money is paid. Caius: "Do you promise to give me HS?" Titius: "I do promise". Is this stipulation valid?

59 Stipulation and its cause Before leaving Rome for a long journey, Titius, diffident of his own slaves, entrusts his most Caius has action against Titius. What can Titius do? valuable possessions to his neighbour Caius. In the political turmoil of the late Republic, Titius and Caius fall in enemy sides. Caius, his own possessions having been confiscated by the enemy, now refuses to give back Titius' unless a high amount of money is paid. Caius: "Do you promise to give me HS?" Titius: "I do promise". Is this stipulation valid?

60 Stipulation and its cause Before leaving Rome for a long journey, Titius, diffident of his own slaves, entrusts his most valuable possessions to his neighbour Caius. In the political turmoil of the late Republic, Caius has action against Titius. What can Titius do? The praetor helps by means of exceptio doli. How does this work? Titius and Caius fall in enemy sides. Caius, his own possessions having been confiscated by the enemy, now refuses to give back Titius' unless a high amount of money is paid. Caius: "Do you promise to give me HS?" Titius: "I do promise". Is this stipulation valid?

61 Stipulation and its cause Before leaving Rome for a long journey, Titius, diffident of his own slaves, entrusts his most valuable possessions to his neighbour Caius. In the political turmoil of the late Republic, Titius and Caius fall in enemy sides. Caius, his own possessions having been confiscated by Caius has action against Titius. What can Titius do? The praetor helps by means of exceptio doli. How does this work? The defendant is absolved if he proves the unlawfulness of the cause the enemy, now refuses to give back Titius' unless a high amount of money is paid. Caius: "Do you promise to give me HS?" Titius: "I do promise". Is this stipulation valid?

62 Stipulation and its cause Before leaving Rome for a long journey, Titius, diffident of his own slaves, entrusts his most valuable possessions to his neighbour Caius. In the political turmoil of the late Republic, Titius and Caius fall in enemy sides. Caius, his own possessions having been confiscated by the enemy, now refuses to give back Titius' unless a high amount of money is paid. Caius has action against Titius. What can Titius do? The praetor helps by means of exceptio doli. How does this work? The defendant is absolved if he proves the unlawfulness of the cause The stipulation is made useless iure praetorio. What was the technical reason? Caius: "Do you promise to give me HS?" Titius: "I do promise". Is this stipulation valid?

63 Stipulation and its cause Before leaving Rome for a long journey, Titius, diffident of his own slaves, entrusts his most valuable possessions to his neighbour Caius. In the political turmoil of the late Republic, Titius and Caius fall in enemy sides. Caius, his own possessions having been confiscated by the enemy, now refuses to give back Titius' unless a high amount of money is paid. Caius: "Do you promise to give me HS?" Titius: "I do promise". Is this stipulation valid?

64 CAIUS AQUILIUS IUDEX ESTO. SI PARET NUMERIUM NEGIDIUM AULO AGERIO DIES MILIA SESTERTIUM DARE OPORTERE, SI IN EA RE NIHILI DOLO MALO AULII AGERII FACTUM SIT NEQUE FIAT, QUA DE RE AGITUR, CAIUS AQUILIUS IUDEX NUMERIUM NEGIDIUM AULO AGERIO DIES MILIA SESTERIUM CONDAMNATO, SI NON PARET ABSOLVITO. LET CAIUS AQUILIUS BE JUDGE. IF IT APPEARS THAT THE DEFENDANT OUGHT ON THE BASIS OF CIVIL LAW TO GIVE TO THE PLAINTIFF 200,000 HS, WHICH IS THE CASE-MATTER HERE, UNLESS ANYTHING HAS BEEN DONE OR IS DONE IN THIS CASE BY THE PLAINTIFF BY MEANS OF EVIL FRAUD, LET THE JUDGE CONDEMN THE DEFENDANT IN FAVOUR OF THE PLAINTIFF FOR 200,000IF IT DOES NOT APPEAR, LET HIM ABSOLVE.

65 Causality vs Abstraction

66 Causality vs Abstraction If I take a book from my library and give it to you, does it become yours?

67 Causality vs Abstraction If I take a book from my library and give it to you, does it become yours? It depends on the cause, v. Commodatum (loan for use) vs. donation

68 Causality vs Abstraction If I take a book from my library and give it to you, does it become yours? It depends on the cause, v. Commodatum (loan for use) vs. donation Traditio = causal.

69 Causality vs Abstraction If I take a book from my library and give it to you, does it become yours? It depends on the cause, v. Commodatum (loan for use) vs. donation Traditio = causal. If I mancipate an estate in your favour, does it become yours?

70 Causality vs Abstraction If I take a book from my library and give it to you, does it become yours? It depends on the cause, v. Commodatum (loan for use) vs. donation Traditio = causal. If I mancipate an estate in your favour, does it become yours? Yes: the cause is not relevant here: one takes for granted that the ritual of mancipatio is performed only when there is intention to transfer ownership. Ritual substitutes for cause

71 Causality vs Abstraction If I take a book from my library and give it to you, does it become yours? It depends on the cause, v. Commodatum (loan for use) vs. donation Traditio = causal. If I mancipate an estate in your favour, does it become yours? Yes: the cause is not relevant here: one takes for granted that the ritual of mancipatio is performed only when there is intention to transfer ownership. Ritual substitutes for cause Mancipatio = abstract.

72 Causality vs Abstraction If I take a book from my library and give it to you, does it become yours? It depends on the cause, v. Commodatum (loan for use) vs. donation Traditio = causal. If I mancipate an estate in your favour, does it become yours? Yes: the cause is not relevant here: one takes for granted that the ritual of mancipatio is performed only when there is intention to transfer ownership. Ritual substitutes for cause Mancipatio = abstract. abstract acts tend to be ritual; causal acts, informal.

73 The difference in trial

74 The difference in trial I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to prove my ownership:

75 The difference in trial I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to prove my ownership: a) if based on traditio; b) if based on mancipatio?

76 The difference in trial I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to prove my ownership: a) if based on traditio; b) if based on mancipatio? (a) the traditio itself and its cause; (b) just the mancipatio

77 The difference in trial I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to prove my ownership: a) if based on traditio; b) if based on mancipatio? (a) the traditio itself and its cause; (b) just the mancipatio When our claim is based on an abstract act, we are favoured by a presumption: it is presumed that the act had in fact a cause and a licit one.

78 The difference in trial I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to prove my ownership: a) if based on traditio; b) if based on mancipatio? (a) the traditio itself and its cause; (b) just the mancipatio When our claim is based on an abstract act, we are favoured by a presumption: it is presumed that the act had in fact a cause and a licit one. What if I (c) sue my debtor on the basis of a stipulatio? What do I need to prove?

79 The difference in trial I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to prove my ownership: a) if based on traditio; b) if based on mancipatio? (a) the traditio itself and its cause; (b) just the mancipatio When our claim is based on an abstract act, we are favoured by a presumption: it is presumed that the act had in fact a cause and a licit one. What if I (c) sue my debtor on the basis of a stipulatio? What do I need to prove? Just the stipulatio itself. Does this mean that the cause is totally irrelevant?

80 The difference in trial I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to prove my ownership: a) if based on traditio; b) if based on mancipatio? (a) the traditio itself and its cause; (b) just the mancipatio When our claim is based on an abstract act, we are favoured by a presumption: it is presumed that the act had in fact a cause and a licit one. What if I (c) sue my debtor on the basis of a stipulatio? What do I need to prove? Just the stipulatio itself. Does this mean that the cause is totally irrelevant? No: the defendant can prove the cause unlawful or void, and thus get absolution.

81 The difference in trial I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to prove my ownership: a) if based on traditio; b) if based on mancipatio? (a) the traditio itself and its cause; (b) just the mancipatio When our claim is based on an abstract act, we are favoured by a presumption: it is presumed that the act had in fact a cause and a licit one. What if I (c) sue my debtor on the basis of a stipulatio? What do I need to prove? Just the stipulatio itself. Does this mean that the cause is totally irrelevant? No: the defendant can prove the cause unlawful or void, and thus get absolution. (1) causal; (2) - (3) abstract. What's the technical difference between them?

82 The difference in trial I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to prove my ownership: a) if based on traditio; b) if based on mancipatio? (a) the traditio itself and its cause; (b) just the mancipatio When our claim is based on an abstract act, we are favoured by a presumption: it is presumed that the act had in fact a cause and a licit one. What if I (c) sue my debtor on the basis of a stipulatio? What do I need to prove? Just the stipulatio itself. Does this mean that the cause is totally irrelevant? No: the defendant can prove the cause unlawful or void, and thus get absolution. (1) causal; (2) - (3) abstract. What's the technical difference between them? in (3) the presumption of a licit cause can be destroyed by the defendant; in (2) it can't.

83 The difference in trial I acquire a slave, he runs away back to the former owner, whom I sue. What do I need to prove my ownership: a) if based on traditio; b) if based on mancipatio? (a) the traditio itself and its cause; (b) just the mancipatio When our claim is based on an abstract act, we are favoured by a presumption: it is presumed that the act had in fact a cause and a licit one. What if I (c) sue my debtor on the basis of a stipulatio? What do I need to prove? Just the stipulatio itself. Does this mean that the cause is totally irrelevant? No: the defendant can prove the cause unlawful or void, and thus get absolution. (1) causal; (2) - (3) abstract. What's the technical difference between them? in (3) the presumption of a licit cause can be destroyed by the defendant; in (2) it can't. (3) presumption iuris tantum (2) presumption iuris et de iure

84 Acts In trial Causal The cause has to be proved The cause is 'weakly' abstract presumed iuris tantum (rebuttable presumption The cause 'strictly' abstract is presumed iuris et de iure (conclusive/ irrebuttable presumption)

85 Acts In trial Causal traditio The cause has to be proved 'weakly' abstract The cause is presumed iuris tantum (rebuttable presumption 'strictly' abstract The cause is presumed iuris et de iure (conclusive/ irrebuttable presumption)

86 Acts In trial Causal traditio The cause has to be proved 'weakly' abstract stipulatio The cause is presumed iuris tantum (rebuttable presumption 'strictly' abstract The cause is presumed iuris et de iure (conclusive/ irrebuttable presumption)

87 Acts In trial Causal traditio The cause has to be proved 'weakly' abstract stipulatio The cause is presumed iuris tantum (rebuttable presumption 'strictly' abstract mancipatio The cause is presumed iuris et de iure (conclusive/ irrebuttable presumption)

88 A Case Aulus wanted to borrow money from Quintus. They agreed that the money would be paid in a week - once Aulus had finalised a transaction he was preparing. On the very same day to secure the future repayment of the loan Quintus asked Aulus Do you promise that 100 will be given to me? Aulus answered I do promise. They also made a document evidencing the transaction. A week after however Aulus transaction failed and so he did not come to Quintus to get the money as he did not need them anymore. When - after a few months the heirs of the recently deceased Quintus found the document they decided to claim the amount therein specified.