Classification of Contracts According to Basis of Obligation

In Roman law not every promise was legally binding, even though it might have been intended to create an obligation. In addition to the promise, there had to be some recognized legal ground (causa civilis) to give legal force to the promise.

Of these grounds there were four, giving rise, respectively, to four classes of contracts that constituted the contractual system of the Romans. "Contracts," says Justinian, "are made by acts, by words, by writings, or by consent." (Inst. 3, 13, 2. See also Gaius, 3, 89.)

Expanding this somewhat, the four grounds are:

(1) the delivery of a thing (res) or the performance of some act by one party entitling him to re-delivery or counterperformance by the other. This was the basis of the Real Contracts.

(2) The use of a certain form of expression, that is, question and answer, in oral contracts, which was the basis of the Stipulation or Verbal Contract.

(3) The use of a certain mode of writing, that is, an entry in a domestic account book, which was the basis of the Bxpensilatio or Literal Contract.

(4) Mere consent in four special cases called Consensual Contracts.

The first ground was equitable, and the Real Contracts may, therefore, very properly be called equitable contracts. The second and third grounds were purely formal, and the contracts based thereon may be called the Formal Contracts.

The Consensual Contracts, with one exception (mandatum). might have been supported on the ground of valuable consideration, but the notion of valuable consideration as the basis of contract, so prominent in English law, was not recognized by the Romans.

.

Effects of Marriage with Manus

By the strict marriage the wife passed into the marital power of her husband {in manum viri). The manus or marital power may be regarded as a particular form of the patria potestas. An uxor in manu was a member of her husband's household. Although called a materfamilias, this term did not have a meaning corresponding to the term paterfamilias. The wife was not the head of the family. She stood legally in the position of a daughter {in loco filiafamilias) of her husband. If she had children she was regarded as a sister of her own children. The relation of husband and wife, both as regards the wife's person and her property, was governed by the same rules of law as governed the relation of father and child. The law of husband and wife may, therefore, be considered as merely a particular branch of the law of parent and child. The husband had, in general, the same power over the person of his wife in manu as the father had over his child. Anciently, it may be suppo...
Read more

Slavery by Birth

The children of a female slave became the slaves of her master. The status of the father as free or slave was immaterial. The general rule governing the determination of the status of a child, whether as free or slave, or as citizen or alien, was as follows : Children born in lawful wedlock had the status of the father at the moment of conception, children born out of wedlock had the status of the mother at the moment of birth. Hence if the father of a child of a lawful marriage was free at the moment of conception, the child was free although the father should subsequently lose his freedom. As to children born out of wedlock, the general rule, as above stated, was that it was the status of the mother at the moment of birth that determined the status of the child. If the mother was free at the moment of conception but a slave at the moment of birth, the child was a slave, and conversely. This was the earlier law, but the rule was modified in the interest of liber...
Read more

Mandate (Mandatum)

Mandate (mandatum) was a contract by which one person mandatarius agreed to do something gratuitously at the request of another mandator , who, on his part, agreed to save him harmless from all loss in so doing. The mandator was said to give the mandatory a mandate, or commission to do the act in question. The term mandatum is sometimes translated "agency", but this translation is misleading. The mandatory is not properly described as an agent. Mandate was the only gratuitous consensual contract; the others, sale, hiring, and partnership, all being founded upon a consideration. Like the others, it was a bona fidei negotium , and bound the parties to do all that was required by good faith. It was of the essence of the contract of mandate that the mandatory should act gratuitously. But while this was true in a strict legal sense, it was allowed to agree upon a sum to be paid as a honorium , or salary, which might be recovered only by a special action and not b...
Read more