FOUNDATIONS’ CONTRACTS HANDOUT I

Roman law of Obligations:

Gaius 3, 88: The obligations are divided in two: Contract or Delict.
Also, some obligations can exist by imposition of the law.

The essence of the Obligations

is not to obtain ownership of a thing, but to constrain someone to GIVE, DO or COMPENSATE something to us. (Paulus. D. 44,7,3 pr)
Contractus was a word specific to binding pacts. Pacts could be either informal or not recognised by the law, whereas Contractus were always recognised by the civil law.

Contracts can be:

A)STRICTI IURIS Formal: The use of specific formalities and words was essential for the perfection of these contracts.

• 
  

  Stipulatio:
  

  VERBAL CONTRACT

  : was the solemn contract by definition. It created obligations upon exhaustion of the formalities required by the law. Its purpose was to either to CREATE OBLIGATIONS or to TRANSFORM THEM.

Essential elements

• Corresponding words: Promittis? - Promitto// Dabis?- Dabo// Spondes?- Spondeo// Facies- Faciam
• Possibility
• Capacity

Other possible elements:

• Term
• Condition

Remedies:

• Actio ex stipulatu
• 
  
  Condictio
  
  

 

B)BONAE FIDEI: They are perfected by the mere consensus.

See article referred in previous entry.
Coming up next……

More classifications...

Real Contracts:

They are only perfected (created) when something passes from one party to party, the thing (object of the contract) had to actually be handed over to create the contract). THEY DO NOT GIVE RIGHT TO A REAL ACTION. The only action available for these kind of contracts is a personal action (ius ad rem). Kinds of real contracts:

- Loan: Mutuum
- Deposit Depositum
- Pleadge: Pignus/ Hypotheca/ Antichressis.