CHAPTER XXXI. CONTRACTUS IN ROMAN LAW. DCV. We have now to consider that source of Obligation called Contract. The first division of (a) Conventiones by the Roman lawyers relates to their I Historical Origin; viz., 1. Légitima Conventiones (b). 2. Juris Gentium Conventiones. The explanation of this division is the same as has been given with respect to obligations, of which, in fact, it is only an application to that particular source of obligation called Contracts. It is to be observed, however, that the jus civile recognized and gave effect to--that is, rendered actionable, supplied with a (a) Dig. l. ii. t. xiv. 1b. 1. xliv. t. vii. Inst. 1. iii. t. xiv. xv. xvi. Cod. 1. iv. t. x. Savigny, Obligationenrecht, ii. s. 52. (b) Dig. ii. t. xiv. 5-7, pr. 1, de pactis. Ulpian's expression of "legitima conventio," referred to the ancient solemn contracts. The expression as used by Paulus (6 ib.), "Legitima conventio est quæ lege aliquâ confirmatur," is wholly different-referring to a convention not properly belonging to the category of contract, but accidentally clothed with that character by a particular lex. Savigny (ubi supra) fully explains this and the error of supposing that this passage in Paulus warranted the notion that pactum legitimum meant a pactum on which an action might be brought by virtue of an Imperial Constitution. causa-all the more important contracts of the Jus Gentium, as the contracts of Sale, Loan, Hiring, and the like. The Legitima Conventio, (c) strictly so called, disappeared in the Justinian compilations. II. The next division relates to the character of the contract, whether it be unilateral or bilateral; though, as Savigny remarks, the Roman Law had no strictly technical expressions of this kind. (d) The unilateral contract presented the simplest form of obligation; according to it one party was creditor, another debtor. The contracts arising from Loan, from Promise of a Gift, from the stipulatio, belonged to this division. The bilateral contract is illustrated by Sale, Hiring, Partnership. Between these two kinds, and partaking of the nature of both, the Romans placed the Commodatum, Depositum, Mandatum. III. Another division relates not to the legal form of the contract, but to the object of the contracting parties— viz., The division into contracts, (1.) Which had for their object the exclusive advantage of one party, which must, of course be also unilateral; as in the instance of the Promise of a Gift, by which the condition of one party was directly bettered, or of a Depositum, by which the condition of neither party was directly bettered, but one obtained through the other the advantage of security for his property. (2.) A contract which had for its object the advantage of both parties, but which might be unilateral, as in the case of a Loan for Interest; bilateral, as in the case of a Sale or Hiring. This division is called by modern writers conventio lucrativa or gratuita and conventio onerosa; but these are not technical expressions of Roman Law. (e) (c) E. g., the nexus-dotis dictio-literarum obligatio. (d) II. Oblig. s. lii. 2, 12. (e) Savigny, ubi supr., "Des dispositions à titre gratuit," is a wellknown branch of French Law. IV. Another division relates to the particular form of action by which certain contracts are protected. 1. Contractus stricti Juris, which were protected by Actiones stricti juris or conditiones. 2. Contractus bona fidei, which were protected by actiones bona fidei. (f) It is to be observed that this division is not identical with the division into legitime and juris gentium conventiones, though sometimes erroneously supposed to be so. (g) DCVI. The true signification of the word "obligatio" has been explained. It is also of importance to the student of this branch of Private International Law to understand accurately the senses (h) in which the Roman Law used the words reus, correus, conventio, contractus, pactum, causa, which so frequently occur, both in the compilations of that law and in the commentaries upon it. The term rei (i) comprise all the parties, whether two or more, whether creditores or debitores, to an obligatio. Sometimes persons under the same obligations are called correi. Properly and technically speaking conventio is, according to the Roman Law, the genus, of which contractus and pactum are two species. (k) Contractus is the convention which generated a civilis obligatio, and, therefore, founded an actio or action at (f) II. Savigny, Obl. s. 52, 15. (g) Ib. s. 72, 196. (h) Ib. s. 72, 196. (2) "Reos autem appello non eos modo qui arguuntur sed omnes quorum de re disceptatur: sic enim olim loquebantur."—Cic. de Or. 1. ii. 43. "Conventionis verbum generale est, ad omnia pertinens de quibus negotii contrahendi transigendique causâ consentiunt qui inter se agunt." - Dig. ii. t. xiv. (k) Pactum-conventum-pactio-conventio are often used, however, as the general names for any agreements. law. Pactum, or nudum pactum, (1) generated a naturalis obligatio (m) only, and, therefore, did not found an action at law, but only the defensive rights of Equity or Prætorian Law, called exceptio (n) and retentio. This form of the civil action was technically called the oausa of the contract. (0) The word causa is, indeed, sometimes used in the material and untechnical sense of the motive cause, (p) but the former is the proper sense; and it is a mistake of Blackstone (9) and Kent, (r) indicating a most superficial acquaintance with the Roman Law, to consider the English consideration as identical with the Roman causa. DCVII. The principal division of the subject of obligation in the Roman Law related to its effect and operation; and with reference to this, conventions were divided into those upon which an action might or might not be brought. It may be convenient to place before the reader in this place the celebrated language of Ulpian incorporated in the Digest (s) :-" Juris gentium conventiones" (he says) "quæ"dam actiones pariunt quædam exceptiones. Quæ pariunt "actiones in suo nomine non stant, sed" (What can be more happily expressed ?) "transeunt in nomen contractús, "ut emtio venditio. Sed et si in alium contractum res non transeat, subsit tamen causa: eleganter Aristo Celso respon"dit esse obligationem. Sed cum nulla sub est causa præter "conventionem, hic constat non posse constitui obligationem, (1) Vide post, further observations as to pactum generally. (m) This distinction of naturalis and civilis obligatio corresponds with the division of legitimæ and juris gentium conventiones, mentioned before. (n) Dig. 1. ii. t. xiv. 4, 1, 7; Mackeldey, Lehrbuch, ii. s. 363. (0) Savigny, II. Oblig. s. 72. (p) Puchta Pandekt. s. 257:—“Si quis sine causâ ab aliquo fuerit stipulatus deinde ex eâ stipulatione experiatur."-Dig. 1. xliv. t. iv. 3. (g) Comment. vol. ii. 444. (r) Comment. vol. ii. 463. edition of 1851. (8) Savigny, II. Obl. viii. 214. The error is corrected in a note to the “igitur nuda pactio obligationem non parit, sed parit excep" tionem." (t) Originally, therefore, contractus denoted an actionable convention, and pactum one not actionable. In course of time, however, the stern Civil Law yielded, and conventions, which were not contractus, became actionable; and though the distinction remained, so to speak, in the books, practically many pacta become actionable, though without a technical name, which the glossators endeavoured, not very happily, to supply, by speaking of vestita, as opposed to nuda pacta. (u) Pactum, therefore, cannot be always considered as a convention which did not found an action. DCVIII. Upon this division of contracts into actionable and not actionable, the Roman Law founded the four species of actionable contracts, already adverted to:-" Obligationes" (both Gaius and Justinian said)" quæ sunt ex contractu aut consensu contrahuntur aut re aut verbis aut literis." (x) DCIX. Of these four species, the two former (consensu, re,) are distinguished in principle from the two latter (verbis, literis). (y) The causa by which a convention passes from the category of pacta and enters that of contractus, and becomes (t) Dig. de pactis, 1. ii. t. xiv. 7. cf. cod. 15,-Hermogenianus :"Divisionis placitum, nisi traditione vel stipulatione sumat effectum, ad actionem, ut nudum pactum, nulli prodesse poterit." And again, Ulpian, speaking of an action founded on a promise of reward for discovering a fugitive slave, says, " Et quidem conventio, ista non est nuda ut quis dicet, ex pacto actionem non oriri, sed habet in se negotium aliquod ergo civilis actio oriri potest, id est præscriptis verbis." Dig. 1. xix. t. v. 15 (De prescriptis verbis et in factum actionibus). |