Informal Contracts

Besides the formal contracts just considered, there were some important contracts whose binding force did not at all depend upon the contracts being made in any particular form, but was based upon very different considerations. The most important of these informal contracts were the two groups of contracts known as Real Contracts and Consensual Contracts.

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The Law of Guardian and Ward

The Roman law included an elaborate system of guardianship. The power of a guardian was" a form of family power, which took the place of paternal power in cases in which there was no one to exercise the latter. Guardianship was established in favor of persons who, although legally independent (sui juris), and hence not under potestas, were nevertheless under certain incapacities of fact or law which prevented them from being fully able to look after their own affairs. Such persons were (1) persons under age; (2) women; (3) spendthrifts; and (4) insane persons (lunatics). The Roman law recognized two general types of guardianship, tutela and cura. Tutela was employed for two classes of persons : ( 1 ) persons under the age of puberty ; (2) women. Cura was employed for (1) persons above the age of puberty, and under twenty-five (piibes minores) ; (2) spendthrifts; and (3) lunatics. Guardianship seems to have been originally in Rome an extension of the patria potest...
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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 ent...
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Rights and Duties of Parties

It was the duty of the landlord (locator) to deliver the property to the tenant (conductor) and to permit him to keep it for the time agreed upon. If the tenant was deprived of the property before the termination of his lease in consequence of the landlord's fault, the latter had to pay him full compensation (id quod interest). But if the landlord was not in fault, the tenant was entitled only to a remission of the rent. Thus, if a farm let to a tenant was confiscated, or a house burned, the tenant was entitled simply to remission of the rent. So in case of a chattel, if it was carried off by robbers, the hirer was released from payment for the unexpired term of the contract. If the lessor of a house determined to pull it down and rebuild it during the term, he had to pay the lessee compensation if the rebuilding was unnecessary, but if necessary, he was required simply to allow a remission of the rent. The landlord was also required to keep the property in good order...
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