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8 Cards in this Set
- Front
- Back
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requirements |
clear!!! any ambiguities contrued against promisee. in each others presence less important later with cautio/stipulation clause where presence → was presumed when promise was recorded in writing unless could prove 'not in same town' commercium (later on pregerines too) right words: used to be formal exchange of correct words b/w promisor and promisee (spondesne – spondeo) relaxed during repubic - more words/languages (q in one, ans in another as long as consistent and both understand) → used later (AD 150) (Gaius' list starts with veluti exclusive or open?, even why not? could suffice but not just nod) no delay: one continuous transaction -- eg sneeze invalid?? fixed price congruence: not conditional response to unconditional q/ introduce fresh terms but note develop not for an impossible thing not general things |
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stricti iuris or bonae fidei? |
stricti iuris --- only based on right form! (later praetor introduced exceptio quodmetus causa (duress) and exceptio doli (fraud) complete defence →) |
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history |
ancient, pre 12 tables. thought to have arisen out of sponsio --- secular contract that emerged when religious associations faded. initially confined to formal undertakings made by litigants in course of litigation. soon virtually any agreement --- law of contract rather than contracts! Alan Waton: indiv contracts arose out of stipulatio as a derogation whenever proved inapprop/ ineffic. *AD 500: very formal, stricti iuris. No defence for duress/fraud/mistake
* became less formal, more diverse (see words), allows defence for duress/fraud/mistake (+relaxation of congruence:unconditional question + conditional promise earlier invalid →question for XX sesterces + promise for X Gaius says invalid, Ulpian says valid for X → (even if ask X and you say XX --common lower sum- for eventhough congruence as to price, clear that X is included in XX) *cautio earlier used to record Q and A, later in late classical -- cautio being there presumed q b4 ans. *AD 472: Emperor Leo: valid no matter what form (or q and A, as long as intention valid) *Justinian: nearly turned into written contract with stipulatio clause/cautio where cautio was evidence that the stipulation was made. (but verbal still valid) presumption of simultaneous presence but not conclusive |
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on behalf of someone else? |
can be in favour of third party with penalty to person stipulating if the promise is not performed |
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Errors |
• error vitiates consent (post-classical period: necessary for person relying on error had to be disadv by it) →error must be made in good faith and be reasonable otherwise it is fraud • error in negotio: parties think the contract is different (e.g. mistake loan for sale) • error in persona: error as to identity invalid (unless it is not relev) for eg partners • error in nomine: mistake of name or some characteristic valid eg rich/poor but none as to identity. • error in corpore: mistake over the thing invalid • error in substantia: Buckland no vitiation unless different category of thing. (eg male/female slave, wine if vineg from start but not if wine turne bad, if gold instead of silver --*error in corpore) Different quality. Vitiate consensual contracts only.?????? |
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Remedies |
only for promisee! sufficiently specified and clear! gaius as to qual, how much is due eg 10 gold coins, hundred jars of best Campanian wine: • condictio certa rei action to return the specific thing • condictio pecunia action to return specific sum of money ---actio ex stipulatu more gen: but had to state liab basis in formula. |
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unilateral or bilateral? |
unilateral --- so only promisee had remedy --- but often sep stipulations resulting in bilateral contract |
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penalties |
a penalty clause could be used to secure for eg oblligs arising under various contracts. |
