Consent as Basis of Contract

While the Romans did not regard consent as the legal basis of a contract (except in the case of the Consensual Contracts), they in later times fully recognized the principle that contracts are in fact the result of consent (Dig. 44, 7, 3, 1).

And in a legal sense two or more persons are said to consent when they agree upon the same thing in the same sense (Dig. 2, 14, 1, 2).

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Pacts

Except in the case of the consensual contracts, the Roman law never recognized a mere oral promise or agreement as amounting to a contract in the full legal sense. To be binding, the promise must be expressed in a certain form, as in the case of the verbal contracts, or have induced performance, as in the case of the nameless contracts. Nevertheless, mere informal promises or agreements were not entirely without legal efifect. As a rule they were not directly enforceable by actions, but they were available as defenses. These agreements were called pacts (pacta). Agreements enforceable by action were called contracts (contractus). As early as the Twelve Tables an informal agreement to waive an action for a tort (delict) was held binding, and constituted a good defense to the action. Afterwards the prastor admitted pacts as defenses to actions on contracts as well as on delicts. A contract could not, strictly speaking, be discharged except in its own appropriate manner. A...
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Paterfamilias and Filiusfamilias

Every Roman citizen was either a paterfamilias or a filiusfamilias. that is, he was either independent or free from paternal power {homo sm juris), or dependent or subject to paternal power (homo alieni juris). The term paterfamilias does not necessarily mean the actual father or head of a family. It was simply the generic name for an independent person. The paterfamilias might be either a child or an adult, either married or unmarried. A female, however, could never occupy the position of paterfamilias, for she was never legally independent, at least under the old law. Correspond- ing to the term paterfamilias was filiusfamilias, or Uliafa- milias, which was the generic name for any person under paternal power whether son or daughter, grandson or granddaughter, etc. The distinction between paterfamilias and filiusfamilias belongs entirely to private law. It was not observed in public law. A filiusfamilias if otherwise qualified, was as capable of voting or holding offic...
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Commodatum (Loan for Use)

A commodatum was a loan of property for the use of the borrower. It arose whenever one person (the commodator ) delivered a thing to another (the commodatorius ) for the latter's gratuitous use. It was a contract of praetorian origin and a bona fidei negotium both parties being bound to do everything required by good faith. The contract was made by the mere delivery of the property for the contemplated use. The borrower did not become the owner of the property, he got merely the right as against the lender, to the use of the property. Hence a person not the owner of the property — even a thief — could give a thing in commodatum. The transaction was gratuitous if the borrower was to pay for the use, it was a contract of hire. The borrower was required to exercise the highest care ( omnis or exacta diligentia ), to take as good care of the thing lent as a good paterfamilias would bestow, not merely such care as the particular borrower usually bestowed upon hi...
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