Cameron Miranda
Roman contract law is a broad and complex topic, with several types of contracts, including literal contracts, real contracts, and oral contracts. Literal contracts, or contractus litteris, were written entries in account books, transferring debts or replacing obligations. Real contracts, on the other hand, involved the delivery of fungible goods like money, food, and drink, with ownership and possession transferred as well. Oral contracts, such as the stipulatio, specified interest rates and dates for loan repayment. Each type of contract had its own unique characteristics and applications, contributing to the development of Roman law and legal practices.
| Characteristics | Values |
|---|---|
| Validity | Requires a "Thing", a price, and agreement/consent |
| Duress | Voids a contract |
| Written form | Not required for validity, but later decreed by Justinian |
| Types | Mutuum, commodatum, literal contracts (contractus litteris), pignus, fiducia |
| Loan | The borrower is obliged to return a similar thing in quantity, quality, and size |
| Interest | Not allowed in mutuum |
| Lender's rights | Condictio action for the value of the thing if a similar thing was not returned |
| Borrower's liability | Held to a standard of culpa levis in abstracto |
| Exceptions | Financing of a cargo ship and sponsorship of a professional athlete |
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What You'll Learn
Literal contracts
There were two types of nomina transcripta within literal contracts. The first, transcriptio a re in personam, was created with mutual consent between parties already bound by a different type of obligation, to change that obligation into a literal contract. The second, transcriptio a persona in personam, was used to change the debtor by crossing out the original debt and entering a new one referring to a different person. The Proculian school believed that neither form could be conducted by peregrines, while the Sabinians believed they could use the former but not the latter.
The origin of the literal contract is uncertain, and its development was shaped by changes in oral contracts, specifically the stipulatio. It disappeared late into the classical age, sustained only by its use in the banking trade. In Justinian's law, it was replaced by the written form of the stipulatio and a form of conclusive evidence for another sort of loan (either mutuum or commodatum) where the holder lost their defence that the loan had not taken place after a certain period.
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Contract requirements
Secondly, a price or consideration was necessary. The price agreed upon by both parties played a crucial role, and if it was derisory or not intended to be paid, the exchange would be viewed as a gift rather than a sale. The concept of "laesio enormis" (huge loss) was introduced to protect small landowners from exploitation, allowing a seller to rescind the sale if the price paid for land was less than half its market value.
Thirdly, agreement or consent was vital. Once the parties agreed on the subject matter and price, the contract was considered "perfect" and legally binding. This agreement could be oral or written, with written contracts (literal contracts) gaining prominence over time. Literal contracts were recorded in account books and could involve the transfer of debt from one person to another.
It is worth noting that Roman law recognised certain principles that could invalidate a contract, such as duress and fraud. Additionally, the concept of "culpa levis in abstracto" held the borrower liable if their conduct fell short of the diligence expected of a respected head of the family. If the borrower was liable, the lender could choose to sue the borrower or the party that caused the loss.
In summary, Roman law contracts required a clear subject matter, a meaningful price, and the consent of both parties. These requirements formed the foundation of contractual agreements in Roman times, with certain principles evolving over time to ensure fairness and protect the interests of all involved.
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Contract validity
For a contract to be valid in Roman Law, three requirements must be met: a "thing", a price, and agreement/consent. The "thing" refers to the subject matter of the contract, which could be the delivery of fungible goods such as money, food, or drink, or it could be a loan for use, which does not transfer ownership or possession. The price could be a derisory amount or even nil, in which case the exchange would be considered a gift. If the price was not intended to be paid, the exchange would also be considered a gift. However, if the price paid for land was less than half its market value, the seller could rescind the sale unless the buyer made up the difference.
The agreement or consent element is also essential. Literal contracts, which were written entries in account books, required the consent of the debtor. The contract was not valid until it was put into writing, and until that time, either party could withdraw. However, the arra, or deposit, would be forfeited by the party refusing to complete the contract. Duress was recognised as a vitiating factor for contracts, but this changed over time. In early Roman Law, a contract made under duress would still be considered valid, and the aggrieved party would have to seek relief from the Praetor. In the late Republic, the formal defence of duress (exceptio metus) operated against a party trying to enforce a contract procured by the threat of "serious evil".
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Contract types
Roman contract law recognises several types of contracts, including literal contracts, real contracts, and verbal contracts.
Literal Contracts
Literal contracts (contractus litteris) are written entries in account books. They can either replace an existing obligation from another source or transfer a debt from one person to another. The form and origin of literal contracts are uncertain, but they are believed to have developed by 100 BC and continued to be used in the Late Roman Empire.
Real Contracts
Justinian identifies four types of real contracts: contracts in re (in a thing) – mutuum, commodatum, depositum, and pignus. All four involve an agreement and the delivery of a res corporalis.
- Mutuum is a unilateral contract where the borrower is obliged to return something similar in quantity, quality, and size to the original item borrowed, as the use of the original item would involve consumption. The lender cannot claim interest.
- Commodatum is a loan for use where ownership and possession are not transferred, and no interest is charged. It is assumed to be for a "reasonable time" if the duration is unspecified.
- Depositum is not described in the sources.
- Pignus is a form of contract that can be carried out by traditio.
Verbal Contracts
Verbal contracts, such as the spondeo form, are considered peculiar to the Romans and are believed to be much older than written forms.
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Contract evolution
The evolution of contracts in Roman law is a fascinating journey that laid the groundwork for modern contract law. Initially, Roman contracts were oral agreements, with the literal contract (contractus litteris) emerging by 100 BC as a written entry in an account book. This evolved into two types of documents: the chirograph, made by a debtor, and the syngraph, made by both parties. The literal contract had two functions: replacing an existing obligation or transferring debt from one party to another. It was shaped by changes in oral contracts, known as stipulatio, which later replaced the mutuum—a unilateral loan that didn't transfer ownership.
The stipulatio introduced a specific date for returning borrowed items, addressing a mutuum shortcoming. It also shifted liability to the borrower for loss, theft, or damage. Interestingly, financing a cargo ship or sponsoring an athlete were exceptions, with the lender bearing the risk. The commodatum, another type of loan, didn't transfer ownership and was interest-free. If interest was charged, it became a hire agreement or an innominate contract.
Roman law recognised the concept of duress invalidating a contract, evolving from early law enforcement under stricti iuris to the late Republic's formal defence of duress (exceptio metus). This protected against enforcing contracts procured by the threat of "serious evil". Fraud was also addressed with the introduction of exceptio doli alongside exceptio metus.
A valid Roman contract required a "thing", a price, and agreement/consent. If the price was derisory or not intended to be paid, the exchange was considered a gift. The concept of lesio enormis (huge loss) was introduced to protect small landowners from economic powers, allowing sellers to rescind sales if the price paid for land was less than half its market value.
Justinian's influence was significant, decreeing that contracts must be in writing to be valid, and introducing new forms of literal contracts. These laws shaped the Roman contract law, which shares similarities with English contract law, despite their differences.
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Frequently asked questions
A valid contract in Roman Law requires: (1) a “Thing”; (2) a Price; and (3) Agreement/Consent.
Literal contracts (contractus litteris) are written entries in some form of account book. They can function in two ways: a re in personam ("from thing to person"), which transforms a debt resulting from another contractual arrangement, and a personam in personam, which transfers a debt from one person to another. Another type of contract is the mutuum, which involves the delivery of fungible goods like money, food, and drink.
Roman law initially recognised that duress should invalidate a contract, but this changed over time. In the late Republic, the formal defence of duress (exceptio metus) operated against a party attempting to enforce a contract procured by the threat of “serious evil”. A comparable development occurred with the introduction of the exceptio doli, which addressed fraud.
