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8 Cards in this Set

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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





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 →)

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

on behalf of someone else?

can be in favour of third party with penalty to person stipulating if the promise is not performed

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.??????

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.

unilateral or bilateral?

unilateral --- so only promisee had remedy --- but often sep stipulations resulting in bilateral contract

penalties

a penalty clause could be used to secure for eg oblligs arising under various contracts.