Roman  Law    

271  

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Roman Law of things:

Definition of res:
1. Wider concept of the idea we have today
2. Possesses economic value
3. Divided into corporeal & incorporeal (the rights differ)
4. Only corporeal can be possessed and subject of acquisition of ownership through usucapio

Classification of things:
• Gauis divides law into three things:
a. Personae
b. Actiones
c. Res
1. Classification of corporeal things:
• Public and private
• Public things cannot be owned

Classification of public things:

o Res communes – things owned and used by everyone (eg. Sea)
o Res universitas – things that belong and used by the members of the community (eg. A park)
o Res nullius – things owned by no one
♦ Res sanctae – protected by the gods eg. City walls
♦ Res religiosae – gods of the underworld eg. Grave
♦ Res sacrae – dedicated to the gods eg. Shrines, temples
♦ Must be able to identify public things

The sea shore

o Lacked legal identity
o “Shores are public” therefore have become no ones property VS become everyone’s property

Classification of private things

o Res mobiles & Res immobiles

• Relevant for prescription, for possessory interdicts and constitutional servitudes.
o Res fungibles & res non fungibles
o Fungibles consumed
o Non fungibles were things that had a separate identity and consumed in performance
o Res mancipi & res nec mancipi
o Impact on the method of transfer of ownership
o Mancipi are transferred through formal methods
o Only roman citizens
o Nec mancipi – every other way of transfer of ownership (traditio)
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 o Eg) slaves, beasts of burden (horses, muals, donkeys, oxen)
o Land in Italy and land with a similar status in Italy
o Rural servitude*
o Mancipatio & in ure cession
o Theories to what is mancipi or nec mancipi – look at land and slaves to calculate you
wealth – thins that worked for and with the land (farming) LEARN THE LIST – CLOSED
LIST FOR WHAT IS AND ISN’T. if it is not on the closed list you can use traditio to
transfer (nec mancipi)

o If the date or classical and Justinian period is not given, you must discuss both the legal
positions
o Divisible and indivisible
o Land divided into smaller pieces – still has value
o Animal are not the same – value is diminished
Actio in rem vs action in personam
• Real actions and personal actions
• In the roman law is procedural – on the action so if you had a recognised action you had
a right
• Gauis gives a short difference of the difference to claim performance to give or perform
something while actio in rem is a direct claim over a thing.
• Personal – claim someone has to perform
• Real – direct
• Focus on comparing and listing
• A real action instituted against the thing itself – institute it wherever it is found – absolute
patrimonial
• Only rei vindicatio was the only way to claim ownership over itself
• Meumesse – specific formula for a claim over a thing – a person says that this res is
mine according to the roman law – either holding the thing itself or a symbol of the thing.
No mention of another party in the formula. This is because it is instituted to the thing
itself. If it’s a movable thing you must be in front of a praetor. If immovable you can grab
a symbol and be on the grounds when you say it – still in front of the praetor.
• Respondents claim – contravindicatio
• Personal action to claim performance – right to performance to claim that right – relative
right. That other person must retaliate (by e.g. defence) otherwise it is tacitly consented.
• Action against specific person – identity of counterparty important
• Claiming a performance therefore there needs to be nexus (eg contract or delict)
• The respondent has to either fight or acknowledge
• If he chooses not to respond then it can be seen as tacit agreement

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Ownership:

Content (nature) of ownership:

• It is an abstract concept
• Initially there was no definition
• Concept was never articulated
• Later the Romanists attempted to define the concept
• Schultz: right over a corporeal thing endows holder with full power over thing, subject to
limitation
• No definitive concept: impossible to define
• Attempt to define by distinguishing between ownership and other real rights
• In Roman law ownership it is described as “unlimited” or “exclusive” however only in
principle, in practice there were some limits set on the ownership.
• It began to differ from situation to situation
o E.g.) usufruct: if someone else has the right to use and enjoy your property and
you are still the owner, your rights of use and enjoyment will revive once the
usufruct’s rights have completed.
o That being said, it is easy to see how each situation can differ and there will be
limitations placed of certain instances.
o Another e.g.) neighbour law.
§ You are not allowed to bury corpses on your property
§ Branches may not hang over into your neighbour’s garden
§ Water may not run from your property into you neighbour’s property

• Content can differ from full rights to use and enjoyment to nuda propretas (naked
ownership)
• Differs from iura in re aliena (rights in another’s things – limited real rights)
o E.g.) servitude, usufruct, specific limited real rights
§ E.g.) when are you allowed to walk over the other person’s property as a
usufruct? At what time? Are you allowed to have people accompanying
you? Are you allowed to carry weapons?

Types of ownership
A.) Dominium (ex iure Quiritium)
Ownership according to law of Roman citizens (ius civile)

• Can only be used by Roman citizens

• Can only be acquired in terms of Roman law
• Under the control of paterfamilias
• The head of the family controls all things
o Including the wife and children
 o There was no distinction of things and people (other than the head of the family)
just yet in Roman law
o Having control over things (res) was the oldest form of title
• Therefore it was a specific type of ownership
• Roman ownership acquired Roman citizen through a Roman process
• Dominium can be acquired over:
o Res corporals (only corporeal things)
o Only private things
o Not res furtiva (stolen goods)
o Land only in Italy (not land in provinces outside of Italy)
o All types of movables
o Res mancipi and nec mancipi

B.) Praetorian ownership (bonitary ownership)

• Flowed from distinction between res mancipi and nec mancipi

• Res mancipi: formal transfer of ownership
o If you did not adhere to all requirements you still had protection with Praetorian
ownership
o This right to ownership is similar to Dominium due to the praetor’s protective
measures
o When people did not adhere to all the requirements of transfer, it was usually
ignorance or human error
§ This type of ownership is still limited to Roman citizens
Foreigners with the right to trade could acquire this ownership

C.) Co-Ownership
• Definition: property belonging to more than one person as the same time (communion).
Look at the development, look at general principles applicable to all forms of ownership.
• Modes of origin:
o Consortium (first method [oldest form] of co-ownership, son inherited father’s
estate): testamentary succession or legis actio procedure
o Communion pro indiviso / condominium = voluntary partners – means co-
ownership – usually created by partners but not necessarily partners, depends on
specific type of partnership.
o Mixing and mingling – created by mixing and mingling – will return to this at a
later stage
• General principles:
o Like partners – relationship between the co-owners
o Share profits and losses – doesn’t have to be a 50/50 deal, depend on that
particular co-ownership
o Liability – for damages cause by/with the communal property, both/all owners
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 o Delictual liability – cause damage to communal res either negligently or
intentionally, this ended co-ownership as you claim for damages from one of the
other owners
o Death of co-owner – will not necessarily end the co-ownership (however not true
with partnership) with co-ownership it can continue.
• Communion pars pro indiviso: joint owner did not own specific part – belong to them
pro indiviso. Classical and post-classical. “co-ownership in undivided shares”. A
particular co-owner does not have the right to dispose of the res (either by disposing or
destroying). Undivided shares – 50% shares. For his share he is owner of the whole of
the property.
• All have to agree to a disposal of property – one particular co-owner cannot do what he
wants when disposing of it – he needs permission from the other owner/s.
• Could however, dispose of individual portion – cannot act with the whole of the res (a
farm for example) but you may sell, dispose or destroy your portion. However is you
want to alienate it you need permission from all owner/s.
• Each could possess, use and enjoy proportionate to his share – has the right to use and
enjoy the whole property and may exploit it (e.g. wine and grapes) however, can only
make the amount in which he shares (e.g. 50%)
• Same care towards the communal property that you would normally show to his
property. Not against standard of reasonable person. It is how he individual looks after
his property.
• Expenses are shared as long as they are for the common benefit – e.g. erecting a
building a barn on property with 20% undivided share (he will have to contribute 20%)
whereas his owner/s will have to compensate for that other 80%.
• Ius prohibendi – vito - if you want make an improvement you don’t need co-owners
opinion however, if they find out before the can stop the process or make you remove it
if they are not happy you did not recent tacit or express consent.
• Problems with co-ownership led to the formulation of maxim the maxim was …
• Maxim communio est mater rixarum NB NB NB – co-ownership is the mother of
problems – one says we must sell it, the says not; one wants to build, the other doesn’t
want to.
o We reach a stale mate
o Can’t expect to have a careless co-owner to be careful
o If you have a question, you must explain the latin is and explain what comminio
is. Explain further about stalemate and careless and end with how we rectify it.
o Actions for division – action communi dividundo
§ Divisible
§ Indivisible – judge will make a decision and award the ownership to one of
the co-owners, only one will be benefitted. Will have to compensate the
other party pro rata.
§ Can be other things to consider (e.g. profits and losses)

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Acquisition of ownership:

• Classifications of acquisition:
o Derivative and original methods of acquisition – D: you need the previous
ownership cooperation. O: no cooperation needed
o Ius civile methods (for roman citizens) and ius gentium methods (for
foreigners)

• Leading principle: Nemo plus iuris in alium transferre potest quam ipse haveret
o No one can transfer more right to another than he himself has
o You cannot transfer ownership if you do not have ownership yourself (nemo plus
iuris rule)

1. Mancipatio procedure
a. Used to transfer the mancipi circumstances
b. Very formal
c. Used mostly for movables
d. (land, slaves and adoption of children included)
e. Used before the time of the 12 Tables – so a well-known and established system
f. Parties:
i. Persons must be holding scales (libripens)
ii. 5 witnesses
iii. transferor
iv. transferee
v. all parties and witnesses will stand together with the libripens – with the symbol or
res – and the copper or bronze will be transfer through the libripens and to the
transferor.
vi. Transferee: “This belongs to me and I by it with my bronze and copper” (holding
res or symbol)
vii. Transferor didn’t dispute claim
viii. Copper or bronze placed on scale and given to transferor
ix. This is a combination of a cash sale and the transfer of dominium (not
praetorian ownership because it is mancipi)
x. Couldn’t be done through representation
• Legal consequences:
o If you followed formalities then ownership was transferred (even if there was
something wrong with the underlying motive)
o No written record? Then it did not mean it was seen as invalid
o Development and practical significance
o Liability
 § Nemo plus iuris NB NB NB not matter how carefully you follow the
formalities if you are not the owner you cannot transfer ownership
§ Contract of sale – actio auctoritatis: if you did not transfer ownership along
side the nemo pus iuris rule then there are remedies that the party can
claim with. Therefore the buyer did not become the owner then the original
owner can come and claim the res as well as double the purchase price
§ Remedy with scale of land – mancipatio procedure only: if the land was
described the land was bigger than is actually was – difference in value.
The buyer can claim double that value.

2. In Iure Cessio
• method of transfer happened in front of the praetor
• old procedure
• roman citizens – ius civile
• res mancipi and res nec mancipi
• however, you would rather use mancipatio – the witnesses can be independent
• the object of transfer can be incorporeal
• servitude or inheritance
• 12 tables
o Procedure
§ Mock trial:
ú Transferor and transferee & res / symbol on front of praetor
ú Transferee fictitious rei vindicatio that transferor expressly or tacitly
admits and claim res belong to him and transferor will agree
ú Praetors judgment: award res
ú Nemo plus iuris: if he is not the owner he cannot transfer the object
o Court procedure validated transfer
o Element of publicity through involvement of praetor
o Abstract form of transfer
o Reason for transfer is not relevant

3. Traditio (ex iusta causa)

• initially transfer of ownership in res nec mancipi
• later also used in cases of the transfer of res mancipi, provincial land, and all transfer to
peregrini (foreigners, not Roman citizens)
• only praetor’s ownership
• dominium is only for roman citizens – 6.2.2.2 in the TB
o therefore is it peregrini ownership
o if you do transfer provincial land – then provincial ownership
o no longer used mancipatio and in cessio
o Justinian – traditio only derivative method of acquisition still in use
• Procedure
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 o Informal method of transferring ownership
o Whether ownership passed or not depended upon
§ REASON to transfer is important – whether it will transfer is dependant on
the reason
Romans worked with causa traditionis (reasons to transfer) – question is
whether reason had to be valid or not
§ Is there an iusta causa for the transfer? If there is then ownership will
transfer.
§ Examples of iusta causa
ú Sale, donation, dowry
ú Obligation for transfer of ownership (precursor to real security – get
to this later on)
ú Mutuum (loan of use) e.g. wine; must give something similar in
quantity and quality
§ If the reason may not be sound or the reason may be sound but you have
not gotten the object yet, then in both cases transfer of ownership did not
occur.
§ NB!! Transfer of ownership – traditio + iusta causa
§ One of the controversial questions surrounding Roman of things was
whether in the case of traditio, ownership transferred if there was an
intention to transfer (a reason) or if it was also requires that this reason be
lawful?
ú Distinguish TWO ASPECTS: real (physical transfer) and
obligatory (agreement that gives rise to the transfer) agreement
• Provides us with the reason the transfer of ownership
• Real agreement (traditio) + iusta causa (reason for transfer)
required for transfer of ownership
• Obligatory: indication of intention with which delivery
occurred
Abstract or causal systems?

• Abstract: intended legal consequences followed regardless of the whether inducing

reason (causa traditionis) for legal action is valid or not. Doesn’t depend on reason
o If it affects the legal action, whether it is a good reason or not
• Causal: validity of legal action depends on validity of underlying causa (only valid if the
reason is valid). Depends on reason.
• Mancipation and in iure cessio abstract in nature – provided formalities met – ownership
passed regardless of whether reason for transfer was valid or not.
o Distinguish between traditio of res mancipi and res nec mancipi:
§ Res mancipi: transferee merely became praetorian owner – thus received
praetorian ownership protection.

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 §The praetor would not have granted his protection without a legally
valid reason for traditio = therefore causal nature.
o Uncertain whether traditio of res nec mancipi was of abstract of causal nature –
we know iusta causa is required, what’s not stated, is whether it has be a valid
reason. Is it enough that you both think it’s a contract of sale?
o Classical period
§ Yes, we know iusta causa is required but valid or not?
§ Mistake (error) from which clear that there was no intention to transfer – no
transfer of ownership.
ú The mistake through which it becomes clear that there was no
intention to transfer, transfer did not occur.
ú Slave – when he has to be handed over but the seller transfers the
twin brother – this is no the intention of the seller or buyer. The type
of mistake that is made is such that there was no intention to
transfer and receive ownership.
• Dissensus regarding causa – no transfer of ownership
o One party thinks he’s transferring ownership but one party receives thinking it’s a
donation – reason for transfer is not the same therefore there is not transfer of
ownership
• Other defects – uncertainly during CLASSICAL period – it appeared that Dissensus
always excluded transfer of ownership.
o For the rest, we know if there is dissensus and there was no intention to transfer
– no transfer. And different reasons – no transfer. But there are other instances.
o One of the requirements is that the prices must be known.
• But in case of mala fides some writers of opinion – ownership was transferred.
o One of the other reasons is mala fides

• What did specific jurists have to say?

o Julian: traditio - abstract (defects in causa only led to personal action therefore
abstract)
§ Therefore he felt ownership did transfer and the ownership has a personal
action to claim back the res.
§ A – B (problem with causa) – must use personal action to claim back (not
rei vindicatio because he is no longer the owner)

o Ulpian: causal approach – apparently supports this approach. What he says is

that if there is dissensus regarding the causa then ownership does not transfer.
(One party thinks it sale and the other party thinks it’s a donation – no transfer) –
but he doesn’t address all instances (e.g. defect in reason, but agree on reason –
then what? Ulpian does not give his view)

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 o Paul: causal? There must be a reason behind transfer and then transfer will be
valid – doesn’t matter whether reason is valid or not.
§ When we look at the texts that the jurists left us we cannot say whether it
was a causal or abstract system.

• Romanists did not agree on nature on traditio:

o Van Oven – by late classical period: traditio causal – no agreement on causa, no

transfer of ownership.
§ If transferee knows its wrong res then ownership will not transfer.
§ The transferee acted in bad faith – mala fides – no transfer of ownership
o Schulz – classical law traditio is abstract
§ Obviously had to be causa traditionis (reason for transfer) BUT:
ú “This only meant that agreement on the legal purpose of
transferring ownership was require i.e. whether traditio was made
venditionis causa, donationis causa …”
ú does not mean that the causa had to be without defects
o [page 182 -184, what did they say? Causal? Abstract?]
• Conclusion: cannot be said with certainty that validity of causa was an absolute
necessity.
o However, it can be accepted that intention to transfer ownership had to be clear.
o In a text/exam: Explain what is abstract and causal. Tell her that there was a
debate between opinions, they did agree/disagree. It is important you understand
there was debate with evidence. Don’t have to know names but must understand
the different theories. Give an example of each where it is abstract or causal.
Wont ask definitions or lists. But if she wants something similar you must give an
example.

• Justinianic period?
o Traditio only remaining mode of transfer.
o Nature of transfer is still uncertain
o Putative causa had to be sufficient. They think there is a reason.
o Nemo plus iuris rule applies here – cannot transfer more rights than he himself
has.
o Does not change if that is abstract or causal!

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Original acquisition of ownership:

Original: don’t need the cooperation of the owner. (derivative, you need the cooperation) – she
like to asks these questions!
• Usucapio
• Occupatio
• Accessio
• Specificatio
• Confusio and Commixtio
• Acquisition of fruits
• Thesauri inventio

Prescription:
• Definition: acquisition of a right or a claim after period of time (you will lose this action if
you do not act within the specific time)
• Possessor of res acquired ownership through factual and continuous possession for
certain period of time
• Precursors to prescription:
o Usucapio (focus more on this more – factual situation recognised by the law)
o Praescriptio longi / longissimi temporis

Usucapio
• Form of acquisition prescription
o Acquire ownership page 100
• Civil acquisition (only in terms of ius civile)
o Only persons commercium could acquire ownership through usucapio
o Some foreigners with the right to trade
Origin:
XII Tables
•
Operation:
•
o Originally only res mancipi – seller, remained liable for eviction for period of 1
year (movables) and 2 years (immovable) – it was sold from seller to buyer,
buyer thinks he’s owner, but if something goes wrong with that – the buyer is not
the owner. The true owner can evict the buyer if he wants to. So the 1 year and 2
year solution came about. The buyer can then claim compensation before these
time limits. However after the time limits the buyer officially becomes the owner.
The original owner will no longer succeed because he has lost his ownership.
o Thereafter seller was no longer liable, title of buyer could no longer be displayed.
o Res mancipi transferred through usucapio the buyer can claim double the
compensation.
Development:
 • Usucapio = later extended to include res nec mancipi
• Initially only one req possession for a certain period (factual possession for prescription
period)
• Classical period = 5 req.
o Res habiles
o Tituluques fides
o Possessio
o Bona fide
o Tempus
• post-classical period a method of prescription for provincial land – Praescriptio longi
temporis (won’t do it in detail, the only thing relevant: length of prescription period
changed from the classical period)
• Two functions:
o usucapio also transformed praetorian ownership into dominium
o later, after distinction between res mancipi and res nec mancipi disappeared –
usucapio merely a method of acquiring ownership. Therefore there was no need
for the first function changing one type of ownership to the other.
Requirements for usucapio:
• 5 requirements:
o Res habilies, titulusque fides, possessio, bona fide, tempus

Res had to be res habilies – susceptible for dominium / capable of owning it – must be able to
acquire dom. Certain things excluded:
• public things that could not be held in private ownership e.g. temple
• res furtiva (stole goods) – cannot become owner ever, no matter how much time goes
by.
• or immovables violently taken into possession – you will never become owner
(though usucapio)
• if it is returned to the original owner (stolen good) it can be once again susceptible for
dominium

Possessio
• Have to have: physical control (corpus) + intention of holding res as owner (animus
domini) – no matter how long you have it for, if you think that you are borrowing it – no
intention.
• Uninterrupted for whole of period of prescription – must have possession the entire time
• Loss of possession during period of prescription brings usucapio to an end!
• By the end of the classical period there were two exceptions:
o heir = allowed to complete usucapio started by deceased (inheritance – only
have to complete their time of prescription – doesn’t start fresh);
o bona fide purchaser (you think that you buying something from the owner – only
acquiring it through usucapio – you think the person you are buying it is the
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 owner already – i.e the owner has not completed their time of prescription. If that
had kept it for 6 month and time prescription was 1 year, you only nee to keep it
for 6 months.)
• by the time of Justinian period accessio temporis also applied in other instances =
periods of predecessors added (didn’t start fresh every time)

Titulus or iusta causa

• Possession had to be acquired in terms of legally valid reason (such as a sale or
donation) putative causa was insufficient.
• E.g. if you find an abandoned item doesn’t immediately apply, only after a specific time
period (1 year)
• The fact that you think it is a good reason is not good enough
• There is no speculation – unlike traditio
• It must be a legally valid reason

At the start of period of usucapio acquirer had to be bona fide:

• Thus he must have had reasonable belief that he was owner or at least bonitary owner –
reasonable belief that he is the owner; even if he wasn’t the owner but there was bona
fide then the transaction is valid – if he finds out later after the transaction then he finds
out he wasn’t the owner, there is no effect of transaction
• If he became disillusioned at a later stage, it had no influence on usucapio

Tempus
• 1 year = movable
• 2 years = immovable
o both of these in the classical period
• the period of prescription
• changed in post-classical period
• only note how the prescription period became longer

Occupatio (appropriation)
• A person acquires ownership of res nullius by taking possession with the intention of
becoming owner
• What is a res nullius?
o Things capable of being privately owned but in fact not owned by anyone. E.g.
wild animal, fish, birds (wild birds, not chicken).
o Hunting or fishing
o You become owner by exercising control over that animal. Kill it or capture it.
o If it escapes you no longer have ownership
• Your ownership is dependant on possession and control
• Not sufficient to wound – had to capture

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 • Certain animals have habit of leaving e.g. bees – kept ownership as long as animals still
had habit of returning. (as long as they have the habit of returning you still have
ownership)
• If the bees start the hive somewhere else, then you lose ownership
• Not only restricted to hunting and fishing
• Res nullius also included:
o Res hostiles: enemy assets on Roman territory when war breaks out (or in the
process) – use English when in doubt
o Islands that formed in sea
o Products of the sea – shells, rocks, stones
o As well as res derelictae –things abandoned by owner with intention to relinquish
ownership
§ Require more than merely taking possession
§ Classical period: possession of res mancipi merely praetorian owner –
acquired dominium through usucapio pro derelicto – if you take
possession but it is res mancipi – only praetorian ownership
§ Justinian period: became owner upon taking possession – there was no
distinction between res mancipi and nec mancipi
§ E.g. ship is sinking, owner throws something over board to lighten load,
this thing is not abandoned, the owner did not have the intention of getting
rid of it. If someone find it on the beach – thinks it’s abandoned, thinks he
can take ownership, but he can’t. the fact he has a reason to become
owner initiates prescription – and over a year he will become owner

Accessio
• Merging of things in such a way that physically or economically speaking only single
composite res continued to exist into which identity of other res was incorporated
• There must be at least two owners
• Acquiring ownership
• Two different owners!
• Merged together in such a way you cannot retain the individual ownership you once had
• Principal res and an accessory res:
o Accessory res accedes to principal res
o General rule: owner of principle res becomes owner of accessory res (new
composite res)
o How determine which principle and which is accessory?
§ Which res retains its identity/purpose/name?
§ Not about which res is the most valuable
§ E.g. a kettle is broken, you need a new handle. You want to add a golden
handle – it will remain a kettle despite the monetary value of the handle
§ Does the owner of the handle before the attachment lose ownership?
YES! This is not co-ownership because he was the accessory and the
  15  
 kettle is the principle res, therefore the owner of the kettle will remain the
owner
§ What if we were looking at a button on a coat? If the button was taken off
the coat, the accessory res (button) will not again belong to the original
owner, it will remain the owner of the principle res (the coat).
§ You can literally just find a diamond and put it on a ring, even if you do not
know who the owner is, and you will become owner of that accessory res
when you attach it to the principle res. Mona fides and bona fides does not
influence the ownership.
• Divisibility:
o If attachment divisible owner of accessory res didn’t lose ownership permanently
only for as long as merger lasted.
o Must read this portion of the textbook with care – there must be some degree of
permanence – e.g. if you just place an object instead of firmly attaching it – it
doesn’t have to be “unattachable” it must just be attached.
o If it is separable or divisible while it is de-attached the ownership is suspended
and awakens as soon as there is a division of owner of accessory res.
o The reason the other forms are mentioned is so that it can distinguish it is not the
others!
o The intent in which the accession takes place does not influence the transfer of
ownership – only the remedies.
o Ownership merely suspended or “slumbering”
o The owner of the accessory res could institute personal action (actio
exhibendum) to obtain division – to enforce the division if this takes place then
you can institute the rei vindicatio to claim back accessory res. (so that your
ownership can awaken)
• Attachment INDIVISIBLE owner of principle res becomes owner of accessory res = loss
if ownership is final.
o Owner of accessory res could be able to claim compensation (but only in certain
circumstances)
• Different types: movable and immovable (not the most important aspect as there are
no remedies she can ask here)
o E.g. land to land
o Natural boundaries = agri non limitati (a natural river, rule: property of the owner
of the land goes up to the river and that’s where the division of property is)
§ Alluvio: gradual deposit on to land (soil) of another (with the passage of
time the river will deposit soil on someone else’s land)
§ Avulsio: flood waters deposit identifiable piece of land against another’s
land (large piece of land ripped from someone’s property and put on to
another’s property)
§ Change in course of river – two ways it can change: by moving which will
just be added to the owners property; it can change that there is an island
  16  
 in the middle of the river and it will just be split down the middle – they will
not be co-owners! They will own their separate pieces.
o No question of compensation as changes in ownership because of the natural
forces.
• Immovable and movable:
o Land always the principal res! Because you attach a movable to an immovable.
o Planted or sown on land of another – becomes property of owner of land when
takes root
o Remedy – look at intention of person who plants or sows – is person acting in
good or bad faith? Has no influence on whether ownership transfers.
§ As soon as its taken root and it becomes property of the land – hiring
plants? They don’t take root therefore ownership isn’t transferred.
§ Your remedy: depends on intention – if you no the property doesn’t belong
to you but you sow any way – it will be see as a donation – ownership will
still transfer
§ The intention is important – but it is important who plats/sows.
A plants B’s trees on A’s land?
§
B plants on A’s land?
§
It’s seen as indivisible – it stays with the owner of the land.
§
A is the one who plants, A the owner of land (it is B’s tree and he knows it)
§
he is acting male fide – liable for theft – you can claim double the worth of
the seeds of plants.
§ A plants but he thinks he’s the plant, he is therefore bona fide – B is then
entitled to the value of the seeds or plant the moment it is planted (not the
fruits or any more). He gets less than male fide.
§ The next situation is where B is the owner of the plant/seed plants or sows
something on land belonging to A
§ If B he knows that it is A’s property then it will be seen as a donation on
A’s land – b will not be able to claim anything
§ B the owner of plant tis under the impression that the land belonging to A
belongs to him – there is a misunderstanding – he sows/plants something,
if he has taken possession of land, he has a remedy, if he is not in
possession he has no remedy.
o Inaedificatio NB term – building materials (movables being attached to
immovables, such as building materials)
§ Owner of land becomes owner of building material
§ The building structure exceeds to the land
§ Become the property of the owner of the land
§ Maxim: Superdicies solo cedit – building material becomes part of the
land (must be able to explain!)
ú Slumbering ownership = XII Tables prohibited demolition – in
most cases where in attach building materials to land there is
  17  
 slumbering ownership (indivisible). XII T prohibited the building the
be broken down so that you ownership will revive, if that building is
blown over in a storm (or owner breaks down be himself) – then
there is divisible and the previous owner of the building will revive.
ú Division occurred later ownership revived.
DISCUSSION CLASS
• A = owner of land; B = owner of the building material
• A builds with B’s material. A knows he is not the owner of the material
• B’s material stolen by A = B can claim x2 value of material in terms of XII table or actio
furti + can claim material once building is broken down, his ownership will still revive.
• B material stolen but A is not the thief. B’s action against thief for x2 value of material +
claim material (only once there is division)
• B’s material not stolen = can claim material back once building broken down
• B builds on A’s land with B’s building material
• If he knows it is A’s property, it is seen as a donation and cannot claim back even
if divisible
• In good faith
o Who is in possession A or B? owner of building material, or the owner of the land
that has possession thereof?
o B still in possession – can claim cost of material from A or has ius tollendi (right to
remove)
o Ius tollendi = when B leaves premises he can remove the material provided to
does not damage the structure of the building
o UNLESS owner of the land is willing to compensate
o B only has the right to remove if A refuses to compensate and only f he is still in
possession
o Right to remove – with out causing damage to anything else e.g. the structure of
the wall – you may not take it with
o If he does get compensate then he is not allowed to remove anything
o Just: ius tollendi even if B is acting in bad faith
o If A is in possession B has no remedy except to wait until building is broken down
– then he can claim back the material
o B is relatively okay position if he is in possession of that building – all he can do is
wait for the building to break down (can’t do himself) but the owner can knock it
down – if there detachment then you have slumbering ownership and it will
revive.

• In bad faith:
o Seen as a donation – no compensation
o Just: ius tollendi (provided he is still in possession)
o If B uses his building material on land he knows doesn’t belong it him – it is seen
as a donation
  18  
 o J period – may remove with out damaging the building
o Must be in possession of the owner
o We will look at what possession means later

Movable and immovable

• Owner of the principle res – owner of new composite res
• If you are owner of the composite res = owner of accessory res (different from before)
• How did they determine which principle and which accessory res?
o Not monetary value
o Which res retains identity?
o Which res will economically speaking continued to exist?
o Accessory res taken up in principal res and they make up a composite res
• Metals:
o Ferruminatio: direct attachment between two similar metals (weld) (NB LATIN)
§ Indivisible
§ No slumbering ownership
§ Owner of principal res permanent owner of the accessory res
o Adplumbatio: soldering together of two metals with lead or tin (note the details)
§ Attachment seen as divisible
§ Ownership of accessory res revived upon division
§ Can have an action for division and institute the rei vindicatio
o Scriptura: write on another parchment / paper
o E.g. of accessio in Roman law
§ Parchment principle res
§ Owner of parchment owner of document
§ Attachment indivisible
§ No slumbering ownership
§ This is writing on someone else’s paper – paper: principle res
§ Not the content that matters
§ The same if you find a method of gold ink – it doesn’t matter what the ink
was worth – you cannot get it into the bottle again, therefore you cannot
claim back and it belongs to the owner of the paper
§ Owner of the idea? They didn’t really have intellectual property rights
o Pictura: paint on another’s canvass
§ Painter is the owner of the painting (not consistent with scriptura)
§ Attachment indivisible, no slumbering ownership
§ Distinction between treatment of scriptura and pictura difficult to explain
why
§ Relative value test
§ Writing is not considered as spectacular as painting, writing is just
incidental, you might as well tell someone.
§ In SA we see them as Specificatio – who creates the new thing
  19  
 o Textura: weaving, no slumbering ownership unless damage to product
§ That’s where weave thread in material
§ Indivisible
§ No slumbering ownership
§ If it is damaged there is a detachment
§ And you can claim ownership again
§ 1.9.7 B in the TB
§ remedies from movables and immovables (must read up) you must know
who became the owner!
§ Which is divisible and which is indivisible.

Specificatio
• Manufacture of Nova Species
• Owner of a new res (actually a new type of thing – grapes into wine; eggs and flour –
bread; not the same as accessio)? Debate: who became owner? Discuss whether it is
J or Classical! – manufacturer always become owner if he uses some of his own
material in all time periods, if he uses someone else’s material there is a debate
o Proculiani: manufacturer becomes the owner (schools of thought) (A makes wine
from B’s grapes, A is owner)
o Sabiniani: owner of material is the owner of a new thing – manufacturer rewarded
(A makes wine from B’s grapes, B is owner and A will be compensated) -
CLASSICAL
o Is it reducible? Can it return to its original state? YES = owner of material owner
of new res; NO = manufacturer owner. J says: can it be reduced to its original
form? A bangle with gold on it – gold melted off, the manufacturer doesn’t
become the owner, the owner of the material will become owner. If its possible to
reduce it – who ever is the owner of the material becomes owner of the new
thing. If it can’t reduce it (wine) the manufacture is the owner.
o No debate where manufacturer mad something partly from own and party from
another’s material, manufacturer always (regardless of the time period) became
owner.
o Pg 199 7.2.5.3 – SEE TB
o If she asks about the legal position you must conclude with the remedies
o Remedy: who is the owner? The maker or the owner of the material?
§ You look at whether the manufacturer is mala or bona fide?
§ And who is in possession?
§ If manufacturer is bona fide and owner of material not in possession – no
remedy
§ If the manufacturer is bona fide but he is not in possession, manufacturer
is entitled to nova species provided he compensates owner of
material. (who’s grapes was used is not what we are looking at here, we

  20  
 only look at who’s grape they are if we are deciding on ownership not
remedies.)
§ Must have an eye for detail! Whether they are bona fide? Who is in
possession?
§ Manufacturer is mala fide – still becomes owner of novas species but
owner of material has actio furti – mala fide does not influence
ownership, only influences the remedy of the original owner and he may
claim at least double the value of the object taken.
§ What if the manufacture didn’t become owner? Can he still be
compensated? We look at whether he was bona/ mala fide? And if he is in
possession?
§ Manufacturer bona fide and in possession – entitles to compensation
before owner of material (now also owner of nova species) can succeed
with rei vindicatio (the example of gold and the bangle) – owner can
institute rei vindication and claim back gold if he compensates the
manufacturer. If he is not possession, he does not have any remedy! L
§ Manufacturer mala fide seen as donation of work
Q: Aulus makes a candlestick partly from silver belonging to himself and partly from silver
belonging to Balbus. He further decorates it with Balbus’ gold – done by soldering. It is in Balbus’
possession and he sells it without Aulus’ permission. It is out of Balbus’ possession for a year.
Aulus wants it back. What is the legal position?

A: ISSUE; RULE; APPLY; CONCLUSION

Facts:
• A makes a candlestick; uses his own silver and B’s silver; a make gold leaves; only uses
B’s gold; A decorates candlestick; Solders; B in possession of decorated candlestick; B
sells and delivers to D. D is in possession for one year; A wants to claim candlestick.
Issue:
• A manufactures candlestick. Who is the owner of the candlestick at this stage?
• Which method of acquisition of ownership is relevant?
• Must dicuss the legal position of all the parties!
• Who owned the candlestick originally?
• Who manufactured it? (Specificatio)
Rule:
• Manufacturer becomes the owner –
Apply:
A uses some his own and some of B’s silver to manufacture the candlestick, accordingly
•
A becomes owner of the candlestick.
Conclusion:
• Remedy? A is not in possession but will be able to claim candlestick from B provided
that he compensates B for the silver (if A was bona fide)
Issue:
  21  
 • Decorating candlestick by soldering gold leave on to candlestick
• Method of acquisition of ownership? Accessio
• Specifically adplumbatio (verb: soldering)
Rules:
• Owner of principle res becomes owner of the accessory – which res gives its name to
the composite res?
• How do we determine which is principle res?
• The candlestick in this case
• Attachment severable or not? If severable erstwhile owner of accessory res has actio
exhibendum and after detachment – rei vindicatio.
•First institute actio ad exhibendum! To divide it. Only once it has been divided,
slumbering ownership will awaken and you may institute rei vindicatio.
Application:
• Here candlestick is the principle res
• Thus owner of the candlestick becomes owner of gold leaves after attachment
• Attachment by way od adplumbatio – divisible
• Thus erstwhile owner of accessory res has actio ad exhibendum
• And then he may institute the rei vindicatio
Conclusion:
• A is the owner of the composite res
• B was owner of the accessory res before attachment thus has actio ad exhibendum for
detachment and thereafter rei vindicatio to claim back
Issue:
• B sells and delivers (TRADITIO) candlestick to D
• Does D become owner of candlestick through traditio?
Rules:
• Nemo plus iuris! One cannot transfer more right than he already has.
Application:
B is not the owner of the candle stick and accordingly he cannot transfer more rights
•
than he currently has.
Conclusion:
• At this stage A can still institute a rei vindicatio for the candlestick.
Issue:
• D is in possession for a year
• Did D become owner through prescription? Usucapio.
Rules:
• Name the 5 requirements for usucapio.
• Has to be res habilies – must be something you can acquire (not public or stolen)
susceptible to prescription
• Titulus/iusta cause – legally valid reason for usucapio to start
• At the start of the period, he must be bona fide – he must believe that he can become
owner or at least acquire bonitary ownership
  22  
 • We assume he was bona fide if the fact do not mention otherwise
• Possessio – uninterrupted possession for whole prescription period
• Tempus (time) – movable: 1 year
Application:
• Candlestick is not a public thing and is not stolen
• If she wants you discuss a stolen res she will specifically say
• Sale is a iusta cause for the period of prescription to start.
• You can sell something if you are not the owner (this does not have anything to
do with ownership)
• There is no indication that D is mala fide
• No indication that D lost possession at any stage
• D has been therefore in possession for the res for one year
Conclusion:
• D therefore has now become owner J (candle stick + gold leaves)
• Therefore, A cannot reclaim that candlestick L

Confusio & Commixtio

• Discussed under heading of accessio but it distinguish the difference
• Confusio: mixing of liquids – diff owners (wine, honey, can’t divide the two again)
• Commixtio: mix solids in such a ways that it forms one mass (grain, sheep, doesn’t have
to be same type of thing: sand and grain)
o Cannot distinguish between principle and/or accessory res – not accessio
o Cannot say that new res is created – not specificatio
• Owner?
o Divisible: each retains ownership of own thing – must institute so that there is
division actio ad exhibendum and rei vindicatio
o Indivisible: voluntary – co-owners; actio communi dividundo (e.g. wine) was the
mixing or not? If they both wanted to mix = co-owners.
§ Involuntary = no co-ownership; person not in possession re vindicatio pro
parte –cannot be divided and invol – then there is no co-ownership and the
person who is not in possession will institute rei vindicatio pro parte for
compensation.
o Money: passing of ownership – no rei vindicatio for specific coins, enrichment
claim – lost ownership for specific coins, can claim and enrichment claim. 7.2.6 is
self study

Thesauri Inventio (treasure trove)

• not res nullius
• a treasure was (one interpretation is that it must be inland)
o movable, valuable thing
o hidden for so long that its owner can no longer be found (hid with the intention –
not lost).
  23  
 •acquiring ownership initially same as res nullius = ‘finders-keepers’ – pars fundi
o The initial position wasn’t clear (finders keepers?) – when its buried in the land it
becomes part is the land and who ever is owner of the land becomes owner of
the treasure.
o Constitution of Hadrian: (classical period)
§ Person found treasure on own land, sole owner
§ If a person found treasure on another’s land, he shared it with the
landowner
§ BUT if found treasure after deliberate search, owner of property became
sole owner 7.2.8 you don’t need to concern yourself with
Remedies
• Legal position complicated – who is responsible for attachment? Bona fide or male fide?
• First determine who is building – is it the owner of the land building with someone else’s
building materials?
• Ways in which owner’s rights were infringed influence remedy:
• Rei vindication (actio and exhibendum sometimes necessary)
o Actio furti
o Conduction furtive
o Actio legis Aquiliae
o Actio negatoria in rem
o Actio Publiciana in rem
o Exceptio rei venditae et traditae

• The rei vindicatio:

o Available:
§ To Dominus (ex iure Quintium) – therefore only for Roman citizens
§ Against the possessor (anyone in possession of the res, no possession,
you can’t institute it – there is one exception that will be explained later)
§ For the return or value
o Characteristic:
§ Action follows the res, not the person (real action)
§ Against everyone and anyone who is in possession of the res (absolute)
o Purpose:
§ (Classical and Justinius period) return or (classical) remunerated
ú the purpose is to maintain the owners ownership, return the res to
the owner or compensate him for the loss. The res needs to ideally
be returned as well as any fruits of the res. If the defendant had any
expenses toward the res, it can be deducted from the owners claim.
With every court order there must be a monetary value returned.
Executed with force – you must return it or monetary value.

  24  
 ú The purpose is the return of the res, cant force them during the
classical period, he may pay a monetary period. You can however
force in the J period.
ú Contra rei vindicatio was the only defence – you allege that you are
the owner.
ú You could deny that person’s ownership i.e. renting saying that you
have the right to be in possession.
§ fructus
§ damages (after litis contestio)
§ expenses (necessary and useful)
§ Free to take part in process or not – res indefensa – the defendant does
not have to get involved, can just ignore (actio in rem) – actio ad
exhibendum sometimes necessary- if the person against whom you
instituted the rei vindicatio choses not to get involved… (these are the
consequences if you chose not to get involved)
o During Classical:
§ Land: Interdictum quem fundum
§ Movable: ducere vel ferre – cattle
o Justinian:
§ If he admits possession but refuse and ignore judgement: Manu military –
the judge will make an order saying that the object must be returned and if
he ignores that he may be executed with military force.
§ Denies possession – the same as in the classical period where you are
dealing with an interdict.
o Questions ownership:
§ Probatio Diabolica
ú Post-classical – stricter rules; but prescription most prove
ownership, original ownership; not difficult to prove; hes owner
because of derivative method, he’ll have to prove that the previous
owner he had given it to him – he must then prove that they were
the owner (all predessecors) too (as well as his ownership). The
rules were stricter so it was very difficult to prove you were the
owner through D methods. But it is easier to prove you become
owner through prescription. Remember, the periods were simply
refreshed from owner to owner if one owner had not completed his
prescription.
ú Classical – Judicial discretion
§ Not in possession (dolus)
ú Classical – actio ad exhibendum the person must be in possession,
to what if he quickly got rid of the res? In this period, you cannot
institute the rei vindicatio if they are not in possession. You can try

  25  
 actio ad exhibendum to force them to bring the res in front of the
praetor
ú Justinian – Rei vindication “fictus possessor” – you can then
institute a rei vindication, you will be able to claim more than the
monetary amount. You can claim for fruit as well, not just the res.

• Actio Publiciana in Rem

o (owners remedy, not of dominus, bonitary or praetorian owner)
§ Available: bonitary owner – rei vindicatio (non-Roman citizens)
ú Res mancipi through traditio / without formal requirement
ú Iusta causa and bona fide of non-owner
§ At true owner – usually the situation of a true owner that transfers through
the wrong method. And those acquiring dominim through usucapio.
ú Exceptio domini
ú But: replication re venditae et traditae – if it is the true owner, then
APIR can be instituted – can claim that the res was sold and
delivered. This is where you acquire it from a non-owner and sells it
someone else via traditio – wont be the Roman owner. He sells it to
you and you lose possession, you wont be able to succeed against
the true owner, but if he sold it to other people you will be able to
succeed.
ú Affective against third parties

• Actio negatoria in rem

o Limited real rights:
§ Available for dominus and against person who assumes limited real right
§ Concerned with real right – an e.g. of a limited real right is a servitude
§ ANIR when your neighbour assumes that there is a limited real right in
place e.g. just builds a foot path on your property
o Characteristic – only prove ownership, onus is on defendant
§ The onus is only on the owner to prove ownership the onus is then shifted
to the other party and he must prove he has a limited real right
o Order – removal if refused – monetary value
§ The idea behind this remedy is to put the owner in his position before the
encroachment
§ It can be for the removal – of pipes e.g. – and if he cause damages while
moving them or refuses the pipe then monetary value can be claimed by
the owner.

• Expectio rei vindicatio et traditae

o This is a defence against the rei vindicatio

  26  
 o Available: res mancipi, requirements as to form not met; transfer by the non-
owner
§ Something has been sold and delivered – delivers through the wrong
method. Therefore you are only praetorian owner. You can use this
defence if the true owner tries to claim it back.
§ Or when you buy something from someone who is not the owner (method
is therefore not NB) after the delivery you will become the owner. E.g. son
sells dad’s slave, after sale and delivery he becomes owner by dominus
because his dad dies and we wants to claim res back – he cannot do that.
Defendant can use the ERVET
o Characteristic: qualify order
§ Judge will make an order
SEE NOTES ON SUNLEARN

  27  
Possessio:

Possessio v Dominium
• “Ownership has nothing in common with possession…”
• distinction dominium and possessio:
o Dominium – objective right (free to use and dispose of property)
o Possessio – factual position (not a right, describes relationship between a
person and a thing; there are some legal consequences attached but it is not a
right)
• 6.5.1 in the TB self study it is a possible question + acquisition of fruits

Possessio v Detentio
Distinction:
• Possessio = legally relevant possession v detention = legally irrelevant (to whole the
res) both to do with physical control, in possessio that physical control have legal
protection and remedies.
• Examples of possessors:
o Owner himself – usually the owner does have physical control, in which case he
is also the possessor.
o “almost owner” – someone busy acquiring dominium through prescription
o non-owner with animus domini – you are regarded as a possessor because you
have physical control and the intention of being the owner. The praetor wanted to
prevent disorder and promote self-help. Bona fide - doesn’t know that he is
acquiring something through prescription, but the res he required is not a res
habilies (stolen). Mala fide – someone who is not the owner and knows he’s not
the owner but remains in ownership of the stolen thing. If something is stolen
from you, you go to the courts to get it back.
o Certain non-owners without animus domini
§ Empyteuticarius – will do this under limited real rights.
§ Pledgee – do pledge under real security, for the repayment of a debt.
§ Precario tenens – tennet at will: owner granted him the right but the owner
can reclaim that right.
§ Sequester – someone who has to safeguard something – dispute over the
owner of the res.
• Possessio = protected through possessory interdicts

• Detentio = physical control exercised by most “holders” things – we looked at a specific

list of people that could be in possession, any one else would therefore be a holder
• Because he is not considered in possession he is not directly protected
o E.g. lessee , borrower, depositee, mandate
 o If you lend you res to someone, you will have to claim it back if they lose it. Don’t
get confused with sequester. Lessee himself with not be able to reclaim
ownership
o Mandate to sell something to you, you send your res to be sold and the money
will come back to you.
• Detention protected via the holder of the right

Consequences of possessio
• Could lead to eventual acquisition of ownership (prescription)
• Protected by legal remedies (interdicta possessoria)
• Who is going to institute an action and who’s going to defend that action
• 6.5.5 discusses the protection – it is not necessary to know the detail. All you need to
know is that possession is protected mostly by interdicts because they are quicker to
issue through the praetor
o 6.5.5.2 actio publican

Possessio: acquisition
• Requirements:
o animus possidendi (intention to control - if you’re sleeping and someone puts
something in your hand, or if you are a minor) and corpus
o physical control was not always practically possible (its about factual control)
§ juridical presumptions of possession fictional transfer
ú clavium traditio, traditio longa manu, traditio brevi manu,
constitutum possessorium
ú you can have factual control by stepping onto a piece of land with
the intention of having that land, marking some logs of wood, etc.

Possessio: loss
• Why is it important to know when possessio is lost?
o Because it has consequences:
§ Usucapio stopped – that period of prescription will be stopped when you
lose possession
§ Remedies for protection lost – while you are in possession you have
interdicts to protect yourself, you will now have to use remedies to regain
possession
§ Remedies to regain possessio was acquired
o Loss of both corpus and animus?
§ NO: loss of either one of 2 elements sufficient
§ “Possession was held to be still existent whenever it seemed just and
equitable having regard to the legal effect of possession.” (Schulz,
classical roman law)
§ 6.5.4 of the TB
  29  
 o retention of solo animo (NB terms – “only intention”) possible:
§ Classical period: (three examples)
ú Seasonal pastures – pastures you only use as certain time of the
year (winter grazing) you will still be in control in the summer.
ú Person who exercised possession through detentor, retained
possession for period after death of detentor – doesn’t have
physical control over the res, the detentor does. If the detentor dies,
the possessor will still be regarded as the owner for a certain
amount of time after.
ú Runaway slave – didn’t lose possession as long as he still had the
intention of being owner, wouldn’t end period of prescription
§ Post-classical also: (two examples added here)
ú Where detentor left, possession was retained – you are exercising
physical or factual control through a detentor but he disappears,
you will not lose possession immediately
ú Where solo animo possessor of land learned of disturbance and
could not succeed in expelling such a person, he retained
possessio – you learn that someone else is trying to gain physical
control over land and you try and expel that person and you fail, you
will still be in possession.

Iuris quasi possessio: (self study)

•Definition: not true possession because concerns incorporeal thing
•Origin: post-classical
•Operation: usufruct or servitude = right to “use” accordingly protected “as if you were a
possessor”
(TEST UP UNTIL HERE)

Class discussion:
Question 1:
• Classical – who is the owner od the ox? Y. Res mancipi and res nec mancipi (distinction
in the classical) – the ox is classified under res nec mancipi – only praetorian ownership
was transferred. Sold and transferred to X, exceptio rei venditae et traditae (defence
that the res was sold and delivered)
• If it wasn’t the classical period – the answer would change because there is no
distinction between res mancipi and res nec mancipi – therefore ownership would’ve
transferred.
• Answer for one mark: you only have to right down the defence that it is sold and
delivered.

Question 2:
• From a non-owner – there is a problem.
  30  
 • Actio publiciana in rem (X’s remedy) [you cant make someone the owner if you are not
the owner]
• Z’s defence – exceptio domini – that he is the true owner
• X’s remedy will probably not work because Z is the true owner

Question 3:
• Theft has nothing to do with things – is Y the owner of the slave?
• No he didn’t, the wrong method was used.
• Mancipatio can only transfer if you meet the requirements
• Y is only a praetorian owner – what is the remedy for a praetorian owner?
• Actio publiciana in rem

Question 4:
• Remedies A against B?
• Will B have a defence?
• Will B have any remedies against A?
• Remedies for A:
o Rei vindicatio against B – if he can prove that he (and not Marcus) is the owner
o If A is not the owner, but is protected by the praetor he has an Actio Publiciana
against B
• Remedies for B
o Apparently B is bonitary owner (slave bought from non-owner / slave transferred
without complying with necessary formalities; also because of traditio, all he can
be is the bonitary owner) if so, B has Actio Publiciana at his disposal
o If M is the true owner, and tries to claim back the slave from B with the rei
vindicatio, B can raise the exceptio rei venditae et traditae [sold and delievered]

  31  
Limited Real Rights:

Introduction:
• Different from ownership rights – it is enforceable against the world at larger but the right
is only enforceable against the property
• Precisely defined content
• Real right over somebody else’s property (ius in re alieana)
• Numerus clausus:
I. Praedial and personal servitudes
II. Emphyteusis (leasehold) – self study
III. Superficies – self study – these two are very surficial, doesn’t usually ask in detail
IV. Pignus and hypotheca – real security by means of a pledge or hypothec

Servitudes:
• Burden on corporeal property of another – it is enforced with a real action
• Praedial (or real servitudes) and personal servitude (subdivided)
• Servitudes developed out of recognition of real rights over land in favour of successive
owners of neighbouring land (all successive owners have benefitted from this)
• Burdened property served other, hence servitudes
• Praedium serviens (serves) and praedium dominans (dominates)
• Post-classical: personal servitudes

Servitutes praediorum: (real servitude)

• Immovable things – over land
• Successive things – in favour of successive owner, you can exercise that servitude
because you are the owner of that land (it will fall away when you transfer ownership)
• Perpetual (will continue if something is destroyed – perpetual in nature)
• Beneficial exploitation of land (lack of water, you now have a servitude which you can
lead over your neighbours land – exploitation of land)
• No numerous clausus – thus possible to create new types of servitudes
• But there are strict requirements
• Two main considerations:
i. Servient tenement should not be overburdened
ii. And should be to benefit of dominant tenement

General requirements:
• 1. Could not require owner of servient tenement to do something (you can’t place a
positive duty on him to build something)
o Only had to allow something or refrain doing something
 o Two exceptions: (there is a positive duty in this regard) seritus oneris ferendi
(support wall – owner of dominant tenement has limited real right can build a
wall) and tigni immitendi (support beam)
• 2. Utilitas
o Two tenements – servient and dominant (there must be a limited real right of the
servient over a piece of land of the dominant – if there is only one piece of land
involved in a question, it is not a praedial servitude)
o Close vicinity (it isn’t always neighbouring properties, but must be close
properties)
o Perpetua causa (must benefit the dominant tenement and must be lasting – if it’s
only for a limited period of time then it is a contractual real right, therefore for it to
fit into this category it must be lasting [no time clause; e.g. a perennial stream])
o Not accidental enjoyment (must increase the value of the property; e.g. having
more cattle on the land would increase the value whereas having a picnic on your
neighbours property does not increase the increase the value – it is not to the
benefit of the dominant tenement, you can have a contractual right to do that but
you can’t have a servitude)
o Nemini res sua servit (you cannot have a servitude over your own property e.g.
if you A walks over B’s land and then buys B’s land, the servitude will be
terminated. They must also revive that servitude if someone else buys B’s
property from A.)
• 3. Exercise right civiliter modo – in a reasonable manner so as to cause minimum of
inconvenience or harm to owner of servient tenement. E.g. not going to cause damage
to his property when walking over the property.
• 4. Indivisible
o Servient tenement subdivided servitude did not divide as well
o Dominant tenement subdivided, servitude not divided and is continued (the
servitude itself is not divisable)
o Servitude could not be constituted only in favour of one of the co-owners of
property.

Servitutes personarum: (personal servitude, not a personal right!)

• Movable and immovable – in favour against a specific person – can still be enforced
against a specific person (therefore this doesn’t make it a personal right)
• Limited duration – maximum period: usually that duration is the life span of a particular
person
• Numerous clausus – only type of personal servitudes
• The purpose: maintenance of that specific person. It cant be transferred to someone
else, can’t be inherited. However you can allow someone to exercise you benefit but you
cannot transfer that benefit.

Praedial Servitudes (servitutes preadiorum):

  33  
 • Rural Praedial servitudes and urban Praedial servitudes – more than just looking at the
location, classified according to the purpose of property. Urban – serving buildings.
Rural – serving land.
o Rural: (res mancipi)
§ Iter – right to walk over someone’s land (can’t take anything with you)
§ Actus – goes further (you may take car or cattle)
§ Via – goes further (weapon; dragging something over the land)
§ Aquaeducts – right for water to pass over your land
§ You don’t have to know these names – in a factual question if she
discusses water flowing over the land; but you must discuss an aquaeduct
in your answer
o Additional types of rural servitudes:
§ Aquaehaustus – right to draw water
§ Percori ad aquam adpulsum – right to lead cattle over neighbours property
to water
§ Ius pascendi – cattle grazing
§ Calcis coqendae – burn lime
§ Harendae fodiendae – dig for sand
o Urban praedial servitudes:
§ Oneris ferendi – right to support buildings
§ Tigni immitendi – right of inserting beams
§ Servitus protegendi – right to build something that hangs over your
neighbours property
§ Fluminis / stilicidii – to allow rain water to drip or flow onto your neighbours
property
§ Ius altius non tollendi – right for your neighbour to prohibit from building to
a certain height
§ Servitus ne luminibus officiator – right of a neighbour to prohibit the way
your building it built if it blocks out the light
§ Ius altius tollendi – freedom to build higher than a certain height.

Acquisition of servitudes:
• Manicpatio and in iure cessio (urban = nec mancipi; rural = mancipi)
o There are the two methods - must be careful regarding rural (examples of res
mancipi - can thus use any of the two methods) and urban servitudes (res nec
mancipi - thus use in iure cessio)
• Who not traditio? You physically have to hand something over with traditio; with a
servitude there is nothing really to hand over.
• Deductio servitutes – owner sells property but keeps limited real right for himself.
• Bequeast or adiudicatio – in a will; or by a judge (in the division of a co-ownership)
• Land in provinces – pactionibus et stipulationibus
• Justinian law
  34  
 • Prescription – lex scriboria

Termination of servitudes:
• Permanent destruction or fundamental change
• Confusio: nemini re sua servit – you cant have a servitude over your own property, it
ends when you buy the property
• Relinquishment – by not using it for a particular time this ends the servitude
• Non usus & usucapio libertatis
o Negative and positive servitudes
• Numerous clausus

Servitudes personarum:
(Not because they are personal rights but because they are attached to a specific person and can
still be enforced against the whole world)
• Nature:
o Movable / immovable
o Serves specific person – function as normally to benefit other person
o Non-transferable and lasts for maximum period of life span of that person –
cannot be transferred by contract or will
o Function = maintenance
o Numerous clausus
a. Usufructus
b. Usus
c. Habitatio
d. Operae

A.) Usufructus

Definition: Usus (use) + fructus (fruits)

• Right to use the object of another ant to take the fruits of the object for yourself in a way
that the substance is not changed
o Cannot change the nature of the property - if wine farm cannot take out vineyard
and plant trees
o If cattle - the number of the cattle needs to stay constant
o If buildings - it needs to be maintained
o Use like a reasonable person would - liable for any damage
o If you gather the fruits you become the owner thereof

Content:
• Right to use object of another and take fruits for himself – salva rei (rerum) substantia
• In such a way that the substance of the res remains unimpaired.

  35  
 • What does that mean? You cant change the nature of the property. E.g is it is a
vineyard, you cant plant olive trees.
• Must use the things like a reasonable person would
• Standard of care (law of obligations)
• If you gather the fruits, you become the owner of the fruits
• What does the owner have left?
• Owner nuda proprietas (naked ownership, his ownership will revive after the usufructs
rights end)– retained ius abutendi; usufruct = real right – enforceable again everyone
and new owner had to acknowledge and respect it
• Usufructuary could claim delivery of res from owner (he must have physical control of
the res for use and enjoyment – he is only a holder NOT POSSESSOR)
• Cautio usufructuaria – right to claim delivery of res, you as the Usufructuary must
make a promise to exercise your rights as a decent person and to return what ever
remains. (gave undertaking that would exercise his rights as a decent person and return
what remained)
• Jurist explanation: draw fruits like the owner would (enjoy proceeds like owner) but you
must keep it in the same condition. The usufruct may lease out his rights.
• Salva re (rerum) substantia – its not the real right the transferred to the lessee, only
has right to use. If the owner dies, he does not have a claim to the owner because the
Usufructuary gave him those rights (not the owner)

Creation:
• Legacy – in a will or bequest
o Example: a farmer leaving the farm for his son but wants his to have a usufruct
over the property
• Classical: through in iure cessio or mancipatio
o Doesn’t have to be when someone dies - can bequest your property to someone
while you're still alive - done through mancipatio and in iure cessio
• Deductio servitutes – you retain a right for yourself when you transfer ownership
• Post-classical: traditio (there is a physical thing to transfer)
• Adiudicatio – an order of the court, where ownership goes to one person and the right
to use goes to the other person
• Pactionibus et stipulationibus (in provinces) – agreement to use and enjoy, if you
don’t honour that, you will undergo a penalty
• Justinian law form free agreements – no formalities that must be met, must just be an
agreement

Termination:
• Death or reduction in status of usufructuary – ended with death of usufructuary,
however it could also be for a specific period. Change in status in a person would end
the usufruct.
o Most usual
  36  
 o Usually to maintain person for his lifetime so at death it would end
• End of specific period
o This was also possible
o Or have something such as the daughter having a usufructuary until she gets
married
o Also ended if status of person changed
• Destruction of subject of usufruct
• Confusio – nemini res sua servit – you can have a servitude over your own property (if
you are the usufructuary and then you become the owner you can no longer be the
usufructuary)
• Relinquishment in favour of the owner
• Lapse over disuse

Quasi-ususfructus:
• Consumables (you cannot keep the substance intact, the problem came in with money,
because you use the specific coins)
o Senatus consultum – this was created in terms of a quasi-usufruct, the person
who was given the usufruct were given ownership, but had an obligation to return
an equivalent quantity and quality
o Same function as ususfructus
o Different juridical nature: ownership right with duty to restore
o Cautio usufructuaria – you must make a promise, you promise that your return
equivalent quantity and quality
o This was initially only money but later any type of consumable
o It has the same function as a usufruct – however because you cannot return what
remains therefore you make the person the owner and give him a duty of
restitution.

Real Security:
Introduction:
• Personal v real – a pledge over movable or immovable. If you therefore fail to pay a
debt, the res will be sold. (Like a mortgage)
• Definition: limited real right (enforceable against the world)
o It gives priority (if you cannot pay your debts you are liquidated – the real
security provides that you are taken into account) – attaches to the res (even if it
is in the hands of another person, you will still be able to satisfy your claim)
• Content: security for debt – no use and enjoyment (This is different from other real rights
because there is no use and enjoyment, you can only hold that object for the payment of
your debt.)
o Accessory right (accessory to the principal debt – provide security for a debt, if
you have no debt then you have no security, once you have paid off the debt you
no longer have security).
  37  
 • Movable and immovable – can be either.

Fiducia cum creditore contracta:

• Ius civile until 3rd century AD – only for Romans
• This is the oldest form in which you can have security
• Creditor become owner through mancipatio / in iure cessio (you’re in debt, so you
transfer the res to a creditor to pay it off)
• Creditor gives pactum fiduciae: this is an undertaking that he will retransfer the res once
the debt is paid
o The initial problem with this was that this promise was not enforceable.
o You have to trust the creditor therefore, that he will return it to you once the debt
it paid
o Later you got a personal action against that third party creditor, however if he
sells the res, there is not way to claim it back
• Debtor:
o Lose ownership
o Initially no remedy, later action fiduciae (personal action)
o No remedy against the third party
• Creditor:
o He does have ownership, but it is limited, there still still an obligation to return it to
the original owner
o Because this is not ideal for the creditor, two clauses were available:
§ Lex commissoria – free someone. If there was no payment of the debt,
this then determined that it would become the property of the creditor (i.e.
the limitation will fall away).
ú This was often in favour of the creditor, as this would be worth more
than the debt.
ú It was abolished by Constantine in 326 AD
§ Pactum de distrahenda re: sells and settles debt
ú This could also be included (but you can have both)
ú This means that you can sell the object and settle the debt – i.e. if
the debt was not paid on the particular debt, you may sell the res, if
any money is left over it goes to the debtor. And the creditor will
keep what the debt is worth.

Pignus Hypothecave:
• Roman law of pledge – pignus hypothecave = real security over movable or immovable
• The next way in which you can have security
• Irrespective of whether creditor in possession of object or not – thus recognize both
“vuispand” and pledge without possession
• There is no transfer of ownership
o Creditor in possession – pignus
  38  
 o Debtor in possession – hypothec
o Still have personal rights – are very similar – some jurists say that only the sound
is different between the two
• Ius honorarium: pignus = delivery of thing to creditor to secure debt
• Delivery merely placed pledgee in a factual sense
• Has the right to exercise control until the debtor repays the debt
• Would only return res after debt is paid
• Initially no real right
o Pledgee was only in factual control – if you lost control you couldn’t enforce a
right against anyone else
• Praetor first protests
o Protection of possession through possessory interdicts
o No real right
o No right to utilize the res to settle debt
o Merely entitled to keep res until debt is paid
o Later real right was established – in the case of non-payment pledgee = you
could sell res and to settle debt
o Pledger – has actio pigneraticia for return of res after payment of debt or for
superfluum after res sold and proceeds used to extinguish debt (reclaim debt, or
what ever remains)
o Lex commissoria sometimes included in pledge agreement – determined that if
debt not paid pledgee became owner of res
• Extention:
o Hypotheca developed as security for payment for rent
§ Lease of land invecta et illata and harvest = security for payment of rent
§ Pledge without possession = didn’t make economic sense to take
possession immediately.
• Interdictum salvianum:
o Interdict for acquiring possession
§ Non-payment: lessor could institute interdict against lessee
§ Not applicable to third patries
§ Could use interdict to prevent lessee from removing inceta et illata from
rental property
§ At this stage not real right
o Next stage – praetor gave lessor gave lessor actio in rem = actio serviana
§ Lessor now had real right over invecta et illata – form free agreement
without taking possession
§ Agreement providing security for rent so common that tacitly accepted as
part of contract of lease – tact hypothec
§ Later, hypothec also used in other situations
§ Praetor granted real action with ALL AGREEMENTS – actio quasi
serviana / hypothecaria
  39  
 § Available to creditor of other claims where security provided with form free
pledge agreement
§ Available against the debtor and all third parties
§ Additional : ius distrahendi (right to sell) – right to sell res and use the
proceeds to satisfy debt

Acquisition of Pignus:
• Pledge could be established by means of :
o Form free agreement
o Lease agreements – tacit hypothec
o Statute
§ Repair of building
§ Fiscus
• Objects: everything that could be sold:
o Res corporeals in commercium
§ Universitas rerum – flock of sheep
o Some re incorporeals
§ Usufructus
§ Servitudtes pradiorum rusticorum
§ Emphyteutis / superficies
§ Debts

Sale of pledge of object:

• Initially merely ius possidendi (right of possession)
o Creditor protected, but could not satisfy debt directly
• Accordingly – lex commissoria until AD 326
o Non payment – res becomes property of creditor
o Unfair
Later: ius distahendi – non explicit agreement
• Justinian
i. Pactum de vendendo - debtor bound [agreement is automatically made - don’t
want to wait - already have the right to sell - you don’t have to wait and you don’t
have to give notice]
ii. No pactum de vendendo: demand payment and sell after two years [didn’t say
anything and just use what is automatically part of the pledge then you can sell but
you have to give notice and have to wait 2 years]
iii. Prohibition of sale: sell after three demands and waiting additional 2 years [could
be included - doesn’t mean it is impossible to sell it is just more difficult - if you
want to sell regardless of the prohibition you have to give notice and wait at least 8
years before you can sell the pledge object and use the proceeds]

  40  
Content of pledge:
• Ius possidendi
o Pledgee had right to possession [initially the only right and even after it was still
included]
o Possessory interdicts and actio hypothecaria [protected by]
o Pignus: immediately [you give the object to the pledger]
o Hypotheca: non-payment [only acquire right of possession as soon as there is
non-payment - don’t immediately want to get possession]
• No use or enjoyment
o Pledger actio pigneraticia – if pledgee uses res; furtum usus (theft of use)
o Unless pactum antichersis – agreement that draw fruit instead of interest [can
include this that you can use the res and draw the fruits without asking interest -
this is in the place of asking interest - don’t usually have this right - has to be
included]
• Ius distrahendi
o Right to sell and use proceeds to settle debt – most important right
o Superfluum (remainder) to pledger / debtor
o Fact that debtor is entitled to get something back means you need to keep the
debtor in mind - not allowed to buy it yourself - it must be the real selling price -
usually sold in market

Multitudinous rights:
• There's no publicity with hypothec because you don’t give over possession - creditor
cannot know whether there is already a pledge on an object or not
• There is publicity with pignus
• Could happen you had more debt than the res is worth then you have to determine who
has preference
• Prior in tempore [first in time strongest in right] - if your debt is the oldest you have the
first right [keep in mind it is when the debt was created and not when the pledge was
created, potior in iure
• First creditor is the only one allowed to sell res - superfluum is what remains from the
sale
• Second creditor and further: no ius distrahendi
o Superfluum - used to pay the other debtors
o Second creditor could acquire ius distrahendi by paying 1st creditor [could
happen that 1st creditor is not bothered and doesn’t want to sell then the second
creditor could pay the debt owed to the 1st creditor in exchange for the right to
sell the object]
o What is the criticism against this form of pledge:
§ If oldest one is the last one to be secured and it is secured then it will be
paid first

  41  
 § There is also no publicity - could have an object who has a lot of creditors
who has a pledge on the object so it didn’t protect the creditors as it ought
to have been - there's not witnesses and there is nothing to sign - creditor
cannot know if there is already an existing debt on the pledge object -
doesn’t really provide security for if you are the last to be paid and there is
not enough for your debt
o Statutory provisions - priority - will be satisfied first
§ Fiscus [state/taxes], wife's dowry [secured by pledge], loan for repair of
pledged object [usually in the case of buildings - automatically have pledge
over that property
o Criticism: no publicity
§ Emperor Leo: 472 AD addressed this issue - pledge agreement formally
executed no given priority - has to be in writing, there are formalities -
doesn’t mean that a pledge is invalid if it is not formally executed - it just
means that if it is formally executed then that debt will be first in line

Termination:
• Pledge terminated when:
o Debt is extinguished - e.g. payment, sale of pledge object and keep proceeds etc
• Pledge object is destroyed - e.g. a horse and it is struck by lightning
• Waiver - creditor and debtor agrees
• Extinctive prescription - there was non-payment - you as creditor don’t exercise your
right and then that right will be terminated

  42  
Law of Obligations:

General introduction:

Meaning of obligatio:
(must see additional notes on Sunlearn and use with the TB – a lot of this is background
information)

• Etymology: Obstringat (Latin for “bond by ropes”)

• Vinculum iuris (legal bond) – Justinian, bond or tie of the law, render something
accordance with the law. Page 249 of TB. Binds one party to perform with the
corresponding duty. Real right enforceable with a personal action. A debtor with a duty
to perform and creditor with a personal action to enforce.
• Contents: performance (has an economic content and only derives from specific content
and binds another perform to give / to do / to perform something – can be a duty to not
do something). The distinction helps us to distinguish between the law of things and the
law of obligations. This derived from specific sources.

• Legal bond = have a debtor who has a duty to perform towards the creditor and
the creditor has the right to performance
• This bond is between parties but can be bound to one another in lots of ways, so what
are you talking about when you are speaking about obligatio?
o This bond is one with economic content and only derived from specific source
o Uniquely Roman
o Achievement to civilization today

• Where does this idea of obligatio come from?

o Have a situation where if there was any dispute it was handled in the family circle
but the families lived in close vicinity what if someone form another family causes
damage to you then this is no longer feasible - has to make up for it in some way
- you would physical lay hold of this person and the worst that could happen was
killing him and this was not ideal - so the idea of paying a penalty developed - this
was all before the state got involved.

• Origin:
o First: vinculum facti
§ Manus iniectio - The state intervened after this, the state prescribed a
formal procedure of the grabbing someone (manus iniectio) and it involved
the person being grabbed in chains. This was regulated by the XII Tables,
it determined when this procedure be followed. He could now pay off
 before he was grabbed either by cattle (pecudes) and then later in money
(pecunia). Therefore he was able to buy of the vengeance. If he did not
pay it off it meant that he would be grabbed (by the person of whom he
owes the debt) and bound in chains of 7 kgs and held in a private jail for
60 days. He was then displayed on the market for 3 consecutive days –
the idea behind this was that embarrassment would make him pay or
someone would feel sorry for him and pay on his behalf.
§ Buying off delict – if the perpetrator was not embarrassed enough he
was sold off as a slave, outside of Rome, if he is a Roman citizen he must
be sold outside of Rome and the money that someone bought him for will
go to the debt. Or he had another option. He could also be killed by
being throw of the Tarpeian rock and the body would still be sold to pay off
the debt. If there was more than one creditor the body was cut into pieces,
because the Romans were superstitious they would bury the body
together.
§ Lex Poetelia 326 BC – this followed, the plebians promoted this and it
was a result of the first class struggle. It abolished the cruel
consequences. The idea that the person was still legally bound. So now
you would have to work off your debt and you were not allowed to be
murdered or sold as a slave.
§ Later: vinculum iuris ended this period (NB Latin term) – it is a legal
bond that binds one party to perform towards the other – the one party has
a right and the other party has a corresponding duty enforceable by a
personal action. (no longer a physical bond, only a legal bond)
ú Intensely personal
• Initially it was physical bond, but as it developed into a legal
bond, you are no longer going to lay into the person, but we
still see an intensely personal action. Cannot transfer an
obligation and it end s with the death of the debtor. “Privity of
contract” the idea that only the parties involved are bound to
that contract.
• Origin: developed out of delict, however some Romanists
say it developed out of contract.
ú Consequences

• What is this duty? - what does it entail - remember it’s a personal right [have a personal
action only enforceable against the specific debtor]
o If you look at institutes - it doesn’t give you ownership or servitude but bounds
another person to give, to do, or to perform something for use - sometimes
included in this definition is a duty to not do something

Sources of obligationes
  44  
(NB from here)
• Classical
Gauis said:
o Contractus – an agreement that is enforcable with a personal action
o Delictum – unlawful action which gives rise to a fine or payment of damages
o … and from "other causes" – there are situaltion where it doesn’t fall into the
above situations. Negotiorum gesto was one of them – you would want to be
compensated, you can claim but its not a contract or delict though? Gauis
adapted his definition to includes situations like this.
• Post-classical
Gauis expanded in the 4th century AD
o Quasi ex contractu (out of contract as if form of contract) or
§ Management of anothers affair, they don’t have an agreement, no
contract, so its as if he agreed to form a contract.
o Quasi ex delicto (out of delict as if form of delict)
§ Difficult to define, strict liability, not only for the perpetrator, someone else
may be liable. For example, he through something out of the window and it
hit someone and the person who will be liable will be the owner of the
building. Regardless of the fact where they did not know.

Not only the Roman that used these four systems, the French also did.

The oldest types of contracts:

• Nexum
o Only applicable to Roman citizens and those with commercii
o Derived from the ius civile
o Known in the XII Tables
o Purpose:
§ See the physical bond in this type of contracts
§ Not sure but the majority of the speculation leans towards a contract of
loan or money
§ A contract of loan (for a money loan)
§ The word “nexum” means “entangled”
§ The form is bound therefore must followed specific procedure
o Procedure:
§ There has to be some kind of public performance (this was a specific
procedure that had to be followed)
§ Witnesses for it to be binding
§ Persons that needed to be present – the creditor, the debtor, the holder of
the scales (libripens), 5 witnesses (adult Roman citizens)
§ It occurred with copper or bronze with a scale in front of the 5 witnesses

  45  
 §The scale was there initially because there were no coins, so you would
use copper or bronze and the weight would be the correct amount
§ Coins were later introduced and were counted and handed over
§ As this is weighed it is handed over afterwards and the creditor says “I
bind you”
§ The fact that its in front of 5 witnesses and the libripens the debtor had to
pay and manus iniectio.
§ It had to be in the form of a specific procedure, the debt will not extinguish
if the money is not paid according to this formula.
§ The form is more important than the substance.
o Development:
§ Intially had to be weighed and then later coins
§ It became immediately have to pay back
§ The nexum contract developed so you could include a time and place for
the payment in the contract
§ Interest then developed (initially it was just the same amount)
§The affect of nexum was that you give your own person as a pledge, you
are subject to manus iniectio (you could be killed)
§ It different, because it is voluntary you take all these cruel consequences
o Lex Poertelia 326 BC:
§ The cruel consequences disappeared and the nexum was no longer
appealling
§ You could now work off the debt
§ Money loan was more informal and appealing
§ What remained of nexum was the repayment of bronze and copper with a
scale which remained until the classcial period.
§ “I release and liberate myself from you with my bronze and copper.” -
Solutio per aes at libram

Obligation ex contractu
Sponsio:
• Procedure
o Probably created through a question immediately following a corresponding
answer - no interruption between the question and the answer
o Was conducted verbally
o Formal words were used in both the question and the answer
o Respective creditor asks the respective debtor whether he promises to do
something and the respective debtor promises on his word of honour that he will
do something
o Debtor is also called a sponsor as he is responding
• Origin

  46  
 o Not sure where it came from, surety, a specific thing/person would appear before
court and there is surety that the person/thihng will be before the court
o Opinion: in Roman times there was a procedure where person gave himself as a
security - there is a court case that is postponed and person is surety that the
person will be in court
o The prevailing theory is that it developed out a temple oath made in front of a
priest and involved the making of a sacrifice - if so breaking the promise meant
that your damned by the gods - worse than manus
• Development
o Developed in front of a temple oath
o Damned by the gods
o Manus iniectio – however, this procedure is worse because you could be killed
because you were damned by the gods
o Quite early in the development it lost its holy nature
o The formalities of the prcess was watered down
o Question and answre - oral
§ Successor
§ Stipulatio

Agreement, contractus and pactum:

• Introduction:
o Distinguish between the two, you must knot the difference in the words
o Agreement, contractus and pactum
o Law of contract vs law of contracts
o Romans have a closed system of law of contract – had to meet certain
requirements. If it does nto fit in, not enforcable
o There was a degree of freedom, could decide on who they wanted to contract but
were still limited
o Modern SA – open system of contracts, you can agree to make anything the
performance of you partner, as long as its not against public policy or illegal.
o Pactum = unenforcable agreement
o Contractus = enforcable agreement
o Agreement = meeting of the minds, min of two people, consensus, intention to
make an obligation
• Agreement:
o Consensus isn’t always enough, the meeting of the minds must legally
warrant enfocability i.e. must fit into one of the recognised form of
agreement
• Contractus:
o Enforceable agreement (voluntarily take something on)
o Unique characteristic: Is an enforceable agreement
o Based on consensus but also fits requirements for a specific contract
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 o Classification (Gauis)
i. Contractus verbis - Above and beyond consensus, the specific words to
reach consensus
ii. Contractus litteris - Must be written consensus
iii. Contractus re - Consensus and the handing over of the object
iv. Contractus consensus - Mere consensus was enough but the Romans
• Pactum:
o Definition
§ Also an agreement but it does not fall into one of the recognised forms
o Origin – pax
§ “To make peace”
§ Found in IIX Tables
§ Peace must be found – talio = and “eye for an eye”, you can do to that
person as they have done to you
§ This is a peace settlement if you don’t want to go the talio route
§ Naked agreement – not clothed with enforcement
o Basis – consensus
§ Could serve as a defence
§ Initially all pacta were unenforceable but them later they had action
§ Certain pacta developed to become enforceable
§ The name for these were “pacta with clothes”
§ The three types are in the TB but not NB Latin terms
ú Right of creation – added to an enfocable contract
ú Praetorian facts – promised to pay but a debt at a specific time and
place & in formal warranty
ú Statutory facts, recognised but the emperor
o Consequences
§ No actio civilis
§ Can be used a defence – pactum de non petendo [agreement not to play] -
someone injures you and you agree to not institute a claim and if later you
to go to court the other person can use this as a defence
§ Certain pacta enforceable were developed later [pacta with clothes]
i. Subsidiary agreement - have contract of sale and include a right
of premption
ii. Praetorian pacts - was recognised by the praetor - promise to pay
back debt at certain time and place + included informal warranty
that you would look after someone's property [example a banker]
iii. Statutory pacts - recognised by emperor - such as a promise to
pay a dowry
o Later development:
§ We previoius saw that a pactum was unencorfacble and ulpianian said:

  48  
 Ulpianius: cause required, no causa, no requirement.
ú
“Consideration” – there must be something more. Anlgo-american
law, negotiations, there must be a consideration, something of
value given and received.
§ Ex nudo pacto non oritur actio
ú Which means that out of naked pact or mere agreement no action is
created
ú So if you just have an agreement and nothing more, no action is
created
o Influence
§ Middle ages – Canon law Matthew 5: 34, 37
ú Due to christian and hewbre ethics, the church in the middle ages
that your word alone should be binding, regardless of whether it is
causa or pactum, if you give your word you bound by it – so they
tried to change this
§ Legalists
ú Against this, wanted the old paxam – if you have no agreement
there should be no action
§ 17th and 18th century
ú It only then changed in these centruies
§ Ex nudo pacto oritur actio
ú An action does in fact arise out of mere agreement – all that is
needed is the serious intention to be bound. The “non” fell away.
ú You will need to look at the additional notes.
§ Pothier
ú Intention was important to be bound
• Except for English law which need consideration, every other country said that
consensus is enough for an action

General principles of Roman contract law:

Specific contract – specific requirements

• Roman law did recignise specific forms of contracts which needed specicfic
requirements
BUT
• Certain general requirements / principles for all contracts to meet:

Requirements:
• Possibility of performance – no obligation to perform the impossible. E.g. if you lease
a dead horse, no contract comes into existence
• Not illegal – cant be against a statutory provision, the law has to set certain boundaries.
Cant be immoral otherwise not contract.
  49  
 • No mistake
• Properly obtained consensus – must be consensus, how the consensus is obtained,
the reason behind the consensus – e.g. there can be force or the threat of force. It is
possible that consensus may be negated through a mistake, so it appears that they
agree but they don’t, e.g. give someone a horse on lease however he (the person you
give it to) thinks it’s a donation. Even if the are both innocent is can result in invalidity of
contract.
o No dolu or metus (force or threat of force)
o Remedies: (when there is no consensus)
§ Restitutio in integrum – to return the parties to the previous position before
the contract. “Return to a previous state” – the innocent party has suffered
damages, they must be placed in the position before the transaction
occured
§ Exceptio (doli) – not an action that a person can institute – defence. If
there was fraud, that induced the consensus, the fraudulent person tries to
enforce this fraud contract onto the innocent party, the innocent party has
a defence (not an action where he can go to court)

  50  
Contractus Verbis & Contractus Litteris:

(only look at contractus litteris from what is in the notes)

Background:
Contractus verbis (consensus + specific words): importance and types
• Verba – the specific words that need to be said in order to reach consensus.
• Types:
o Dowry to husband (dotis dictio) – promise of a dowry, promise ade to the
husband, father or debtors and the aim is to contribute to the household. This
then disappeared.
o Promise by liberated slave (iusiurandum liberti) – promise by a liberate slave, the
slave gets liberated and then he makes a promise that he will maintain a certain
standard of service to the master.
o NB stipiulatio – consensus + the uttering of certain formal words
§ Origin: Developed out of sponsio – the ides of a question and an answer
§ Name: stipulari – stips. The theory is that is derived from those words, this
refers to a twig, this refers to the fact that the parties are bound together
like the branches on a twig.
§ Definition: a verbal expression in which the man is asked replies that will
give or do what he has been asked of him. (found in Digesta 45.1.5.1)
Content: NB contract because the content is open, yes still party of
the closed contract but anything may be formulated in the form of a
question and get an answer for it.

• Content: open – it mean that basically anything can be the performance, the content
can be anything. It is however mandatory that you promise in specific words. However
you can promise anything, the content is open – very important within this closed
system.
o Existing obligation – to transform this obligation in the form of a stipulation.
Although there is an obligation you would want a stipulation. Debt – to provide
security in the form of surety-ship = personal. The stipulation became less used
because there were contract developed with out the same formal manner.
• Basis: Fides – based on roman concept that your word is your bond – fides. There was
a whole list of characteristic that the romans had to strive to acquire. Fidelity was one of
them – your word being binding.
• Nature and consequences – ius civile – roman citizens and foreigners with commercii.
o Negotium stricti iuris – strictly enforceable, the judge will not look at good faith
when he enforces the contract, if you promised to do something you have to do it.
If you were induced to make the promise through fraud or threats of force you
have a problem because this was no taken into account. Later certain remedies
 did develop in the case of fraud, stipulation is therefore important in the case of
fraud, you must understand the context as modern lawyers.
o Abstract – which means that you don’t look at the underlying reason, it doesn’t
matter why you made the stipulation, even if it was an invalid reason, the
stipulation is still valid.
o Unilateral – only one party has duty, this doesn’t mean that there is only one
party, only one party has a duty to perform, one party will ask them to promise to
do this and only the party that has a duty to perform will answer. You will need
two stipulatio if you want more than one party to do something.

Remedies:
• Not very NB, when you do something in terms of stipulatio, it could be in term of a slave
or money, or something uncertain (you don’t know what the damages are).
• Condtio (certum) – e.g. slave, it must be certain
• Actio ex stipulate (incertum) – uncertain e.g. will compensate for damages suffer due to
accident. i.e we don’t know what the damages are just yet.

Advantages and disadvantages:

• Simple – has to be able to formulate as a question and an answer in order for it for it to
be a stipulatio – more likely there is for a misunderstanding, to more likely there is for
dispute.
• Accurate – if someone says to you pay them 10, you must pay 10, no less
• Versatile – wide range of applications

• Strict formalities – such as, it had to be concluded orally, if some people were therefore
excluded (a mute) just nodding your head was not sufficient)
• Had to be in each others presence – the roman empire became large, it was difficult –
what if the party was in another province? You had to either travel or use another
contract.

Classical requirements as to form: (must know this well enough to be able to tell her whether it
is value, you must be able to speak on all issues)

General requirements:
• Negotiate – they negotiate and this was then formulated in the form of a q & a
• Question and answer
• Example:
o Question: do you promise (spondesne*) to give me the salve Stichnus?
o Answer: I promise! (spondeo* – theses are specific words that had to be used)
• In certain respects relatively informal in regards of the fact that there were no witnesses
required and no proof of contract (modern day it seems stupid, why is there no proof of
  52  
 contract, you word was so important and reliable that a written contract). The Romans
preferred this type of surety-ship, you word was that important. We can assume in some
instance though that there were witnesses present, just for the validity.

Formal requirements:
• Verbis – oral – who was excluded? Deaf and mute. There had to be an oral question
and answer, so certain parties were excluded, you had to be able to pronounce and
hear the question.
o 212 AD – Constitutio Antoniniana – some people who were considered as
Roman citizens didn’t used this, they then used the Greek system of Greek
contract – which were written. Now when they became roman citizens they didn’t
have written contracts however they did change this and reduced the contract to
writing. The oral question and answer was asked and answered and then a
written record was kept.
o Clausula – common practice 4th century – this was included in the written record.
This was a clause that states before the written record that there was a oral
question and answer. And usually this was accepted as the truth but it could be
disproven and the contract would then be invalid. If you could prove that they
were not in the same province then you could say that there was no oral
agreement. But remember, reducing it writing was not a requirement, still valid if
not written down.

• (3) Inter praesentes – no representation / agency, means that the parties have to in the
presence of each other you cant use any one to stipulate on your behalf, as the empire
extended this became a problem.
o Justinian – constitutio – according to this, a further clausula stated that they
were in each other’s presence, the only way to disprove this was to state that
they were not in each other’s presence. Difficult to disprove. This was assumed
to be the truth so representation could’ve occurred.
o Ultimate position – in the Justinian period – if you had a written record that
included this clausula there wasn’t really much formalities tat remained. Because
you could used any verb, any language and something had to be promised,
eventually the verb was not the important, eventually the idea of a continuous act
was watered down too. Then what happened if there was no written record? The
oral q & a was needed and still needed to be in each other’s presence. This
all usually does not contain a date, all the requirements were quite relaxed. Must
be able to compared classical to Justinian.
o Further development – as Roman law developed and contract law develop – “all
agreement should be enforceable” development. What this meant is that all
contract were base on good faith. However certain rules and defences still
remained. Like you cant stipulate for a third party.

  53  
 • (2) Continuo actu – immediately answer, you cant go out and ask your friend, you can
even sneeze. If there was some sort of an interruption then you would have to ask again
so that the answers followed immediately.
o Classical period – had to be a continuous act – q & a had to follow immediately
o Post classical period – this changed, you could sneeze or say a poem before
the answer, you could even have a days interruption.

• (1) Solemnitas – congruence (i.e. q&a as well as acknowledgement of the performance

– you had to say “I promise” and you must use the same verbs, had to correspond
between the question and the answer.) with regards to: content & verb (Spondesne?
Spondeo!)
o What if 10 asked and 20 promised – valid or not? Our first answer would be not,
but the romans were more pragmatic they saw that 10 was part of 20. Therefore
it did correspond.
o Words used – had to use a specific verb, and the content of the performance
had to be the same, the first aspect that was watered down was the words used –
you could now you other Latin terms with the same meaning. Not sure when this
change occurred, probably early empire. First the words changed, but then the
language changed,, you could used a different verb – didn’t have to answer with
“I promise” could’ve said “I give my word”.
o Language used – question and answer could also used different languages, you
could now ask in Latin and reply in Greek. Then you eventually didn’t even have
to used a verb, could answer with “of course”
o Question and answer
Constitutio Leonina 472 AD (are we still working with specific contract
types?) – this was the next step in the development, this was a constitutio
of Emperor Leo – as long as the meaning is clear, this went as far to state
that you didn’t even need a question and an answer. If this is the case
the you didn’t even need a contract in order to do this, this became too
wide to include too much – it is therefore unlikely that the constitutio even
went that far because then why would you need any other type of contract.

Abstract Nature of Stipulatio:

• Causa stipulationis (there was usually a reason why you promised to do something –
could be because someone gave you something and you promised to pay back):
o Irrelevant – the reason though, it irrelevant, it not taken into a account, if you
promised to do something then you had to. You still had to perform if someone
threatened you. The praetor intervened and gave certain remedies so justice
could prevail, its not fair if there was a threat of force and you had to promise.
o You don’t have to know the Latin and remedies in detail
• Later: remedies
• Exceptions:
  54  
 o Exceptio doli – if someone defrauded you
o Exception mervis non traditae – there was a subject matter of the sale which had
no been delivered. Initially you would you would promise to deliver and you would
promise to pay, you didn’t look at the reason, it was strictly enforces, so the
praetor stepped in if you didn’t get anything if you still promised to pay.
o Exception non numerate pecuniae – you promise to pay but you have not
received the money to begin with. You would then not have to pay him pay with
this remedy.

Fields of application of the stipulation:

• Open content – wide field – do anything with it, the Romans liked sticking with this
system. They used in family law, contract law, succession law. You used to it create and
novate obligations. An incentive to perform – to do something.
• Distinguish:
o Create (when there is no existing obligation and you create one) and
o Novate (renew or change the obligation – there already is an obligation and we
novate it)

• Stipulationes for the creation of obligations:

o Supplementary obligations – something that attached to the principle obligation.
E.g. you are going to stand surety.
o Therefore we need to distinguish between the supplementary obligation and the
principal obligation.

a. Stipulatio for interest

o Purpose – the contract for the loan was based on friendship – you would go to
your friends or family if you needed money. Here it was not possible to ask for
interest – If you wanted to ask interest, you had to add something i.e. a stipulatio
for interest. This is supplementary it is not part of that loan contract (principal).
o Limits – initially no interest, but this did not make sense to not have
interest. Interest could then be added in the Classical and Justinian period
§ Classical = 12% per annum
§ Justinian = 6% [4% : loans made to senators – they were in a position
of power]
o Faenus nauticum (SHE WILL ASK THIS)
§ Borrow money for sea voyage – higher interest dues to risk
ú Only have to repay the money if the ship reaches the habour – if not
you do not have to pay anything. However if you are the cause for
the ship sinking thinking that you done have the money to pay then
you will still have to pay. It would have to be a storm or natural
event then you would not have to pay. But if the borrower was the
cause, he would still have to pay.
  55  
 ú Greek institutions – because of the high risks (22 – 23%) not sure
how much the Romans interest was.
ú This is risky business – because you only get paid if the ship
reaches the harbour he can ask for a large amount of money. The
higher the risk, the higher the rate of interest.

b. Penalty clause – Stipulatio poenae

o Problem – breach of contract – the reason why this was created was the breach
of contract. Order will be made in monetary terms in SA – you will be
compensated but you will not necessarily get the specific performance.
o Solution - penalty clause as incentive to perform – is you go to court all you will
get is the penalty. But why wait for the judge? You can include this stipulatio that
both parties perform the way they are supposed to perform. In Roman law the
penalty clause is unlimited. There does not have to be a correlation between the
object and the performance. The idea is to make it as high as possible so that the
person would rather pay than perform the penalty.
o Example:
§ SA: Conventional Penalties Act 15 of 1962
§ Court has discretion to check penalty clause – party has to deliver (not
necessarily monetary)

c. Surety in the cases of loan – stipulatio for suretyship [later in detail]

• Stipulatio for novation

o Definition = termination of an obligation; replace with another, new obligation
§ There is already an obligation that is replaced with a new obligation
o Distinguish:
§ 1. Novation between the same parties (inter easdem personas). There
are certain procedural benefits = negotium bona fide – negotium strictu
iuris.
ú You have a debt between A and B and you want to replace it, why?
There are certain benefits. The court has to take good faith into
account. If can replace it with stipulatio – the judge in this instance
would not refer to good faith.
ú Consolidate debt and release with on act / replace one debt
(acceptilatio) – you can consolidate between the two parties, which
you can even do if you want to replace it with the debt to release
the debts (easier admin – one debt carrying interests). There are
also procedural benefits.
ú Create certainty with regards to various pre-existing debt with
more recent obligatio – if there is uncertainty with the dates of the
debt or the rates of the dates
  56  
 § 2. Novation with 3rd party involved (inter extraneas personas). There
is already and existing obligation and it is replaced and a third party
is involved. Substitution of the debtor.
ú Problem: Romans do no known real delegation (= new debtor) or
true cession (= new creditor)
ú Cession = replacement of creditor was no recognised and neither
was delegation. They only liked it with the parties bound to that
contract.
ú Solution: substitute debtors with stipulatio – delegatio or
expromissio – sub creditors with stipulatio
ú For example: B owes A one gold coin but at the same time B is a
creditor for T. So we want to shorten the process where A can just
go directly to T – therefore T would now become the debtor. A has
to ask T(potential debtor) if he will pay him what B owes him. A will
ask, “do you promise to pay me what B owes me?” there is no
longer any debt between A and B, T is the new debtor.
ú Delegatio – when B asks T to make the promise to A, he is
delegating T to pay. This can happen without B’s knowledge or
consent. A still has to ask for the payment.
ú Expromissio = if B does not ask/know about the debt between A
and T. sometimes its not necessarily a debt between T and B, T
could just want to be B a favour. But when there are two debts, i.e.
the debt between T and B and B and A, then it can only be done
with B’s permission and with delegation.
§ Substitution of the creditor:
ú Why would want to? If you had a business and you were financially
secure enough to ask someone else to collected your money from
the debtor.
ú T as the new creditor – you want to replace A with T and will have
to ask the question and B will have to answer the question. T will
ask the B asks him to pay him what he owes to A.
ú This can only occur with A’s permission!
ú A will not lose his claim without losing permission.
ú The debtor will stay the same, we want to change the creditor.
ú T will ask the question of the debtor, B, “Do you promise to pay me
the existing debt you owe A?”
ú The romans did not know cession? So what was the solution?
Cession is the transfer of the existing right, this is not what happens
here.
ú There is an obligation between A and B and this will terminate and
a new debt with the same amount will be created B and T. This is

  57  
 not the same as cession! It is similar, but remember, the
Romans did not have cession.

• Stipulation for suretyship:

o Personal security – officium amicitia (duty of friendship) – as opposed to real
security. You can loan money and you use real security to convince someone to
pay back and you have security if you cant. Or someone can pay on your behalf.
Every good roman citizen would stand for his friend – it was considered his duty
to stand surety.
o Practical need – no banks; for helping your friends – the people you would go to if
you needed money would be your friends and family.

• Three types – first type: Sponsio and Fidepromissio

o NB – can only be used as security for debt arising out of stipulatio.
o The oldest form
o Must be able to identify each one and know what the repercussions are.
o Lengthy development – started with sponsio and soon after fidepromissio.
o The principle debt has to be a stipulatio if the reason for the debt is another type
of contract you cannot use sponsio or fidepromissio as a method of surety.
Therefore its important to know the source of the debt.
o Distinguish between two:
1. Available to who:
ú Only roman citizens, or a foreigner with the right to trade.
2. When created:
ú Sponsio: in the time of the XII Tables;
ú Fidepromissio: 300 BC
3. Words used:
ú Sponsio: Verbs with the derivative spondere
ú Fidepromissio: Verbs with the derivative fidepromitere
4. Remedies against the debtor: (more details later)
ú Sponsio and Fidepromissio: the debtor couldn’t pay and the surety
had to pay, so the surety has some remedies to recover some of
the money
ú
o How was it created:
§ Through ad promissio – added or an additional promise, there is therefore
a main promise and an additional promise that the surety will pay the date.
§ So there are 2 promises: the main debt and the additional promise
(different from today, where you only have one debt)
§ You must look at additional note.
§ One promise for the principle debt and one for the surety. There are
examples in the notes.
  58  
 o Nature:
§ Must ask if there is an accessory or not? The validity of the surety, is this
dependant on the principle debt or not. If it is not its independent and if it is
it is dependant.
ú First ask the principle debtor and then the surety
ú So if so happens that the first promise wasn’t valid? Does your
surety fall away? See in the additional notes debate
ú The argument is that no its not accessory, because there are two
promises, the principle and surety. Because it is a separate affair
then it should not matter whether the first promise was valid or not.
BUT MUST LOOK AT ADDITIONAL NOTES.
§ Must ask if it subsidiary or not?
ú If it sub – you can only to the surety once you have asked the
principle debtor to pay. If its not, it means you have choice whether
you want to claim the money from the debtor or you can just straight
to the surety and claim that money.
ú Must creditor first approach / claim from the principle debtor? No
beneficium excussionis. So if you don’t have a choice you have
beneficium excussionis.
ú You first have to go to the debtor and discuss it with him.
ú He can attempt to get some of his money from the debt – this is in
principle at least, most of the time the debtor wont have the money.
This will differ between sponsio and fidepromissio
ú Right of recourse at debtor – the surety did pay on the half of the
debtor and the surety holder wants to recover his money.
ú If you’re going to recover through sponsio: lex Publilia – actio
depensi – you have a right to recourse.
ú Fidepromissio: foreigners are involved
• You must look at the legal relationship between the surety
holder and the debtor, why did they agree to the debt and
that would give you an answer for recourse.
o Mandate by debtor, a mandate contract, in terms of
which the principle debtor ordered them into doing it?
Actio mandate is the method of recourse
o Management of another’s affairs, out of your own will?
– actio negotiorium gestorum – not based on
consensus.
ú The reason why we have surety is usually because the debtor
cannot pay back, you’re implying that he is insolvent and this could
have a negative effect on his reputation. What if he did have the
money? You don’t have to look at whether or not the debtor has
money but it is implied that if you have gone to surety then the
  59  
 debtor does not have the money. The debtor can claim delictual
damages if he did in fact have the money and was not insolvent
because of the harm to his reputation.
ú It comes down to defamation – if you implied he did not have the
money he can institute the actio iniuriarum in terms of delict! Not
the contract.

o Effect of litis contestation (joinder of issue – the close of pleadings)

§ He can either go to surety or debtor and he has made his decision
§ And it has reached the stage of close of pleadings
§ Can he change his mind? Can he shift his claim from surety to debtor?
§ Read on the effect of litis contestation

o Development:
§ More protection of surety through legislation
§ If he is not protected he will not want to participate
§ So the protection developed
§ 2 year limit – lex Furia (200 BC) – on surety’s liability
ú You lose protection after 2 years, after you stood surety you are
only liable for then. He can not look to you for surety after 2 years.
ú He lost his protection if the debtor was not able to pay
ú Co-surety liable for share – lex Furia. You cannot expect it to be
liable to the whole of that debt. This is determined by who it still
living. This is not decided when that are living you will look at the
debt when they are debt. And you don’t look at who is insolvent –
that loss will be born by the creditor. E.g. if A B C and D are co-
sureties and D dies and B is insolvent, A B and C will still have to
pay a third and if B cant pay it will be the creditor’s loss.
ú It is the creditors loss if the insolvent person cannot pay – he can
onlu claim what the other person owes, he cannot claim the
insolvent’s share from any of the other people who hold surety
§ Writing – lex Cicereia
ú This is next protection, the creditor needs to provide a written
document saying which sureties are for which debts
ú This is the requirement of writing
§ Right of recourse against co-sureties – lex Appuleia
ú Last protect right of recourse against co-sureties (not the principle
debtor)
ú You have the right but it is divided and one of the co-sureties pays
more than what is necessary, you have a right of recourse that you
can claim back the money that belongs to you

  60  
 Sponsio and fidepromissio fell into disuse and it was replaced by fideiussio

Nature Dead Insolvent Woman

Solidary Proportional It will not be Proportional

share divided divided, it will be share divided
Classical

amongst co- lost and the amongst co-

sureties creditor knows sureties
this and it is at his
Sponsio

own risk.
Justinian

Solidary It will not be Proportional Proportional

divided, it will be share divided share divided
Classical

lost and the amongst co- amongst co-

creditor knows sureties sureties
Fidepromissio

this and it is at his

own risk.
Subsidiary It will not be Proportional Exceptions
divided, it will be share divided
Justinian

lost and the amongst co-

creditor knows sureties
this and it is at his
own risk.

  61  
 o Fideiussio
§ Also type of fidepromissio ( a promise to pay what another owes)
§ Must go to the debtor first before going to the surety holder. You must first
claim whatever you can.

§ Reasons for creation:

ú Good intentions to protect the surety
ú Lex Furia, Lex Ciceria, Lex Appuleia was not the ideal situation for
the creditor
ú Therefore that needed a situation which benefited the creditor more
ú Not limited to debts created by stipulatio, remember the first one
was only allowed if the principle debt had originated from a
stipulatio
ú It is hereditary you can hold the heirs of the surtey liable. Not like
the other one where it ends with the death of a person, the surety
can be inherited.

§ Nature:
ú Accessory – the validity of the principle debt? Is the stipulatio
enough? We deduced from what is promised, you promise to pay
what is owed. It looks like it was the intention that there would only
be surety if there was an amount that was owed.
ú Subsidiary – was it? It depends on the time period! In the classical
– not it was not subsidiary. You cab decided do I want to get my
money from the principle debtor or directly to the surety? Therefore
it is solidary liability.
• Post-classical: the creditor no longer has a choice he has to
go to the principle debtor first! The surety can raise this
defence that you have t go to the debtor.
• Beneficium excussionis – you would get everything that you
can from the debtor thena dn only then you can go to the
surety
• Justininan ended the litis contestatio
ú Right to recourse
• Dependant on the legal relationship of him and the debtor, so
why did he stand surety for the debtor? Mandated? (Actio
mandante)? Or his own accord? (Actio negotiorum
gestiorum)?
• The effect of litis contestation – does the end the right you
have against the other party? Can you change your mind?

  62  
 o In the classical period you could not, the previous debt
would be cancelled. If you say no to the debtor and
the surety cannot pay, then you cannot go back to the
debtor.
o Actio iniuriam – if you chose to go to the surety before
asking the debtor has the money or not. If he does
have the money this is a damage to his reputation.
And the other party wouold not longer be liable.
o Beneficium cedendarum actionum - if there was a
legal relationship such as a partnership then he would
have a right of recourse. Any action that the cred
would have had was transferred to the sureties. So
you do have a right of recourse against the other co-
sureties. Steps into the shoes of the principle creditor
– he gets all the action he had against the debtor.
ú Division of liability between co-sureties?
• If one of the sureties is taken to court an the whole amount is
claimed from him, he can claim that it is also claim from the
solvent co-sureties (you don’t look at who is dead, the heirs
will be liable, we are looking at who is solvent)
• Beneficium divisionis (117 – 138 AD) if you do use this you
will only pay a certain part of the debt, you only pay what you
a liable therefore you cannot claim anything from the other
co-sureties.
ú Prohibited suretyships:
• NB it is not invalid, if a woman stands surety and she has
already paid, she has no right to claim back, she does have
a defence if the creditor does take her to court.
o Senatus Consultum Velleianum (46AD)
o The defence a woman would have
• Justinian: Authentica si qua mulier
o Because is became watered down so that she could
stand suretyship in a formally executed document. In
the J period this was created so that she could never
stand suretyship for her husband even if it was a
formally executed document.
o Only abolished in 1971

§ Invalid stipulatio
ú Self study!

  63  
 SPONSIO FIDEPROMISSIO FIDEIUSSIO

Source/duration XII Tables 300 BC 100 BC

To whom? Roman citizens Citizens + foreigners Citizens + foreigners

Accessory? Yes Yes yes

Subsidiariy/solidary Solidary Solidary • Classical+post-classical =

solidary
• Justinian: Beneficium
Excussionis = subsidiary

Protection of sureties • Lex furia • Lex furia • No longer limited periods

• Lex cicereia • Lex cicereia • No other protections available

Right of recourse: 1. Lex publilia • Surety has a right of • Surety has a right of recourse
1. Vs principal debtor 2. Lex appuleia recourse against against both the debtor and
2. Vs co-sureties both the debtor and the co-sureties in the classical
the co-sureties in period
the classical period 1. Justinian:beneficium
cedendarum
actiorum[relationship]

Division of sureties • Living sureties • Hadrian [117 AD]:beneficium

from lex furia divisionischanged division of
• Woman:senatu living sureties - liability can be
s consultum inherited
velleianum[46
AD]

Availability of actio Available Available • Available in classical period

iniuriarum • Not available in justinianic
[if creditor addresses period
sureties before the
debtor, debtor can say
that his dignity was
injured]

  64  
Contractus Re
(Real contracts)

Introduction:
• Form
• Requirements
o Consensus
o Handing over of a corporeal thing (there is no contract before it has been
handed over to you)
§ If there is payment then it will be another type of contract! There is no
payment in contractus re
• Purpose
o Friends, family and neighbours
• Examples
o Contractus re nominate (with name)
o Contractus re innominate (without name)

A.) Contractus re nominate (with name)

Four Types:

1. Mutuum (loan for consuption)

Elements / Requirement:
a. Agreement (consensus)
b. Transfer (datio) of fungible res (gold, silver, wine and money) – it must be consumed
(used up) and then something different, in the same quality and quantity, is returned
c. Must take place with the intention to give back equivalent quality and quantity (no the
exact same objects, but the same quality and quantity). If there is no intention to give
anything back, it is a donation, and if the intention is to give the exact same back it is
commodatum. (there is no counter performance)

• Consequences:
i. Unilateral obligation – duty is only on the borrower to return the same quality and
quantity.
ii. No additional or supplementary obligation – what about interest? In this case it is
not, it is a service to friends or family. Therefore there is no interest, you can if you
want to in terms of a stipulatio but its not necessary.
iii. Duty of lender if thing is defective – what if the wine is poisonous that the lender
lent to the borrow? Can he be liable? No he cannot be held liable in terms of the
contract. He made be held liable in terms of delict but not in terms of the contract.
• Actio: Condictio
 • Origin: there was a need for something more accessible. If you cant pay there should
be less drastic consequences. Where does the word come from? Comes from words
that means: “what was mine, becomes yours”. This is seen as a pseudo theory by some
and some believe that it means “turn out your petty cash.” Not as formal as the nexum
contract.

• Development:
o Post Classical: Consensual loans – no longer require the thing be handed over
before the contract came into existence (we came closer to this situation)
o Debtor to pay third party – the debtor has to pay the third party. Look at the
additional notes.
o We have a debt between A and B. Now A wants to conclude a contract between
him and C. He then tells B that the money should be paid to C, so instead of B
pay A, and A lending money to C, B will go straight to C. this happens because
you want to create a contract between A and C, not because he has a debt.
Therefore eventually C will have to repay A, A is only lending him the money.
o Mandatum à mutuum. The mandate changed into a mutuum.
o A gave B a mandate to go and claim on his behalf. Therefore B is in position of
money that belongs to A. so B tells A that he would like to keep the money and
will repay him at a later stage. Through consensus is becomes a loan. Before the
Post Classical period, B would give the money back to A and then B would have
to ask if he could borrow the money.
o Contractus mohatrae (look at additional notes)
§ B asks A for money, A doesn’t have any money but he can loan him a
thing to sells and he can keep the proceeds as a loan but then at a later
stage he will have to return the proceeds.
o Risk – they might disagree what the thing is worth. If B can only get 8 coins and A
believes it is worth 10 coins, B will have to pay back 10. Even if he is unable to
sell it, he cant just return the thing, he will have to find 10 coins.
o What happens if there is a destruction of the thing? On the way to the market
where B is going to sell it, it falls off the wagon and breaks. Does he still have to
pay A back?
o Who bears the risk will depend on the intension? If A doesn’t really want the
money for what is sold and he is doing B a favour, the risk is on B. What if A
wanted the thing to be sold? Then A would bear the risk.
o Interest was prohibited but there were ways around this. A sells something (worth
100 coins) to B and he does not have to pay immediately. B takes that same
thing and he sells it for 80 to A. Therefore, 20 coins are interest.
o Another prohibited case: loans to filiusfamilias. This was prohibited in 69 -79
AD. To protect the paterfamilias, someone did not have money so he murdered
his father and then he was able to pay them. This wasn’t very convincing
because supposedly having your father alive could be to your advantage,
  66  
 however the truth came out that this person could not stop spending even when
his father told him to – the real reason then would to be protect them against
money lenders, like a minor. This is the real reason behind the Senatus
Consultum.
o Valid if the paterfamilias gave the permission or if it was ratified after his death or
filiusfamilas in military service or in service of the state. It could be enforced and
the creditor could get his money.
o RD Law still applicable for sons under the age of 25 but not applicable in SA. We
do still have protection of minors of enduring contractual liability.

2. Commodatum (loan for use)

• Loan for use – not a loan for consumption – you must specify in English. Involving a
lender and a borrower.

Elements:
• Consensus – regarding the type of contract – what is the purpose of the contract – there
must be a meeting of the minds.
• Datio – detention – there must be a corporeal thing that is handed over. Not transfer of
ownership when the thing is handed over, he is merely a holder. He doesn’t become the
possessor. Anybody who is in control of the res may lend the thing. You do not need to
be the owner, so even a thief could lend the object.

Purpose:
• Commudus – use of thing for convenience
o Movable – it was usually a movable but it could either be movable or immovable
o Non-consumable – usually it is a non-comsumable it is however possible that it
may be consumable. A bowl of exotic fruit and you borrow this fruit from you
neighbour but no one it going to eat them and you will return the same fruit.
Money? It is normally consumable, if you start a business and you initially you
borrow money just to show people you have money and later you will return the
same money.
§ Ad pompam et ostenationem – must know this term, typical question in
theory when you must discuss it in its theory. “For pomp and splendour”
o No counter-performance – if there is a counter performance then it will not be a
commodatus
o Return of the same thing – the intention should be to return the same thing

Origin:
• Commodo (convenience) and datum (give) – this is given for convenience.
• Must be returned after a reasonable time
• Extends from late praetorian law. Then you also had loans but they were more informal.

  67  
Nature:
• Mutuum – is strictly enforceable and you don’t take good faith into account however
commodatum you do take good faith into account (not strictly inforcable)
• This is a bilateral contract – meaning both parties how rights and duties. You must tell
her what the nature of the contract is, unilateral – tell her one duty, bilateral tell her
about both the duties.
• Commodatum is imperfectly bilateral – the lender only has duties in certain
circumstances but the borrow always has a duty. The lender may be liable if the horse
he has lent kicks someone, so he may not always have a duty.

Duties of the borrower:

• Use of the thing – how should he use the thing?
o In a reasonable manner and
o For a purpose – if you have borrowed the horse to teach your children how to ride
and then you use it for other purposes it is furtum usus (theft of services) and you
will be liable if there are damages.

• Duty of care:
o Principle of utility – high benefit (not paying for it but you get to use the res),
therefore high duty of care. You will then be liable in more circumstances.
This is the principle of utility.
o Borrower is liable for damage caused to the res
§ Dolus (bad faith) – the intention, if you knew what you were doing it
would have caused damaged to that res. That is intentional damage. This
is the only circumstance in which you would be liable for.
§ Culpa (negligence) – something you could have foreseen and prevented
but you didn’t. so if you thought about it and you neglected to consider it,
then you would be negligent. This includes dolus always, so if you found
to be negligent you will be found to have the intention. Damage you could
have foreseen and prevented it.
ú Culpa lata – gross negligence, worse than normal negligence.
Quite careless.
ú Culpa levis in abstrato – paterfamilias (this is the normal duty of
care, i.e. normal negligence. The duty was then lowered to this level
and you no longer got custodia. The care someone would show to
another’s things.
ú Culpa levis inconcreto – the care that you would usually show to
your own things. This is only really used in partnership. If you are
usually very careless, no one is going to expect you to be more
careless – its going to depend on how you look after your own
things.
§ Classical law custodia (typical “light” accidents)
  68  
 ú Liable for everything done intentionally and negligently or light
accidents
ú Anything caused by nature in this regard, flood, however not theft
ú Therefore everything except vis maior (theft) – you will have the
actio furti, you can claim back the thing or the value. If you get back
the thing is it yours? No, the actio furti does not transfer ownership.
Unless he leaves it with you of course, then it will become yours.
ú Theft? Actio furti at the thief may be used – the borrower will
therefore have to compensate the lender, then the borrower has the
actio furti
ú Justinian à only had culpa levis. The borrower will always be liable
in two situations – furtum usus (mentioned earlier) and mora. Mora
(delay in performance) is when the borrower returns the object past
the time he was supposed to use it. But in the Justinian period, it
was lowered to culpa levis. Remember, you will still be liable if
something happens if you do not use it for the purpose which you
said you would borrow it.
ú When the lender receives a benefit the duty of care is lowered on
the borrowers behalf. You must take note of this because it has an
influence on the duty of care. E.g. a music concert – you go to the
concert and you get told that the show is cancelled because the
harp is broken and you offer to lend your harp – no charge. You are
then receiving a benefit. If the harp is damaged – the borrower is
liable, if the harp causes damage, the lender will be liable.

ú When she asks a question she wont give a time period

because she wants you to give both the answers for
commodatum.

• Duty to restore (borrower)

o You must return the res and any attachments as well as the fruits - in
substantially in the same wear and tear condition. Remember you duty of care
towards the fruits is the same towards the res.
o Actio commodati directa – remedy the lender can use if something goes wrong.

Duty of the lender:

• Exceptional expenses – there is a small level of care that the borrower must feed the
horse if he is borrowing one however, if the is now a medical bill and it was not at the
fault of the borrower, then he may claim that money from the lender to pay for it.
• Reimburse damages if defective – the lender will have to reimburse the borrower if
there is damage of the res but only of there is dolus. So he knew the horse would buck

  69  
 people or he knew the wood that he lent was rotten. So he is aware of the defect and he
is aware it will lead to damages.
• Borrower’s remedy: actio commodati contraria (for one of the two situations above)
and ius retentionis (he may keep it until he compensated for the damages). This is to
enforce the lender’s duties.

3. Depositum (deposit)
• Bailment – real contract. The depositee (receives object) has a duty to safeguard the
thing and there must be no counter performance and must return it on request of the
depositor (gives object). Can agree on a time before hand, or it can be on an
undetermined period and must be given back on request.

Elements:
• Consensus
o All the roman contracts – the consensus alone it not enough
• Handing over the thing (detentio)
o Must be handed over with a specific intention – must be a corporeal thing. This is
legally unprotected. Because detentio – the depositor does not been to be the
owner, he could be a thief.

Purpose:
• Schultz – movable and immovable (immovable were quite rare). In South Africa it could
be either movable or immovable.
• According to the TB – movables only
• The depositee undertakes to safe guard the thing and to do so without any charge.
• Occurred in public barbs? And you didn’t pay to go in – why would you pay for someone
to look after. If they charges a fee it is another type of contract.
• Undertakes to safeguard the thing and undertakes to return the thing upon request.

Origin:
• In XII Tables – if you sell something you will have to pay something that is given to you
in depositum, you will pay twice the damages. But as a bona fide contract it was only
since Classical law.
• A bona fide action – based on good faith the judge may then take this into account.
• Imperfectly bilateral – the depositor would only have action in certain circumstances.

Duty of the depositee:

• To safeguard the thing – remember the higher the benefit the higher the duty of care,
you are not being paid therefore the benefit is not that great then the duty of care is not
that high.
• The parties can agree that they want a normal level of culpa thus a higher duty of care.
But you can never exclude dolus.
  70  
 o Dolus + culpa late
o Infamia – honour – you were trusted to look after the thing and if you proved
untrustworthy you would have infamia. This would not really tarnish your name
but it would affect what legal activities you entered into. This deals with a duty of
dolus and you damaged it with intentions.
• May not use the object
o Not given to use, give to safeguard. Any use would amount to furtum usus. If
something happened to the object while you were using it furtum usus, you will
be liable. But if something happens to the object when you’re not using it, then
you will not be liable.
• Has to give it back
o Depositor thief – if you find out the person who gave it to your is a thief, you have
to give it back to the owner, not the depositor.
o Remedy: Actio depositi directa – the depositor’s action to enforce the
depositee’s actions.

Duty of the depositor:

• Reimburse expenses – if there is expenses he has to reimburse them, all reasonable
expenses. Food or a horse or clothing for a slave. If it is unreasonable, then he does not
have to pay.
• Reimburse for damage due to culpa – reimburse damages cause be negligence the
depositor could’ve have reasonably foreseen (culpa).
• Remedy: Actio depositi contraria – if a thing has to be returned in a specific place, the
digest tells us that transfer costs will be induced by the depositor.

Special cases:
• Depositum irregulare – depositee = owner
o This person receiving something to safeguard, he becomes the owner, and
because he has become the owner he does still have the duty to return the object
but he may use it.
o This sounds a lot like mutuum. However the purpose is different, it is not a
loan. The purpose initially was that they were meant to safeguard the item. It’s
not to make a loan.
o Therefore the legal nature differs.
o Remember you cannot ask for interest, however here you may and you don’t
need a stipulatio. With depositum irregulare you can ask interest.

• Depositum in sequester – sequester/stakeholder = possessor

o The sequester (depositee) becomes the possessor, not merely detentor.
o There was usually a dispute – the thing is given to a third party to safeguard and
he will only give it back when the dispute has been resolved.

  71  
 o This interrupts usucapio and this will continue after – but neither of the parties will
gain ownership through usucapio.
o The main difference is that the sequester become the possessor in order to
safeguard the thing until the dispute is solved.

• Depositum miserabile – depositee = detentor.

o Used in exceptional cases, where you house might be burning down.
o You have an immediate need to ask someone to look after your stuff and you
don’t have time to consider whether they are trustworthy or not.
o This is still based on consensus so the other party must still agree to what is
being asked of him.
o The duty of care does not change – you will only be liable for dolus. The
difference comes in when you look at the amount of damages you a liable
for i.e. double the value.
o The reason for this is that you don’t have time to chose – you don’t have time to
be careful with who you ask.
o If he does intentional damage you will be liable for double.

4. Pignus (pledge)
• Real contracts – the person receiving the thing will have a duty to return the thing when
the debt has been paid. Parties to this pledge it the pledger and the pledgee. The
pledger is usually the debtor (he is going to repay), and the pledgee is usually the
creditor.

Elements:
• Consensus
o The parties have to agree on the type of contract and the handing over of the
object, they must know it is for security.
• Giving res in pledge
o Only once it has been handed over has the contract come into existence. It can
be movable and immovable.

Purpose:
• Security – this is handed over as security for the payment of a debt. If it is handed over
for another reason then it will not be pignus. The pledgee will not become owner, he
becomes the possessor and has interdicts as remedies if someone tries to unlawfully
take it from him.

Origin:
• Praetorian law
• And once the debt is repaid you will have to return the thing. Was accepted as part of
the Ius Civile.
  72  
Legal relationship:
• Imperfectly bilateral – there is a duty of care of one party and the other will only have
duties in some situations.
• Bona fidei – good faith is taken into account and it lead to the establishment of a limited
real right.

Duties of pledgee:
• Duty of care – this is the person who receives the object; looks like it might be like
custodia but in the classical period it was definitely was culpa levis.
• May not use – the purpose of keeping the item is for security for the repayment for a
loan, you may not use the object for any other reason otherwise it is furtum usus. He
would liable for damages even those due to vis maior.
• Return thing – no payment – there is a duty of him to return the thing if the debt has
been settled with the fruit in substantially the same condition.
o Remedy – actio pigneraticia. If there is no payment, he might have the right to
sell the object but you must have a look at the circumstances. Or you may sell it
for what it was worth and then the excess will be returned to the owner. The
pledgor’s remedy: actio pigneraticia (directa).

Duties of the pledger:

• Reimburse necessary expenses – this is the person who hands over the thing and he
will only have duties in certain circumstances and it is to reimburse the pledgee when
there are costs involved. He is in charge of all reasonable expenses.
• Duty of care – this is not certain but we may assumed that it was the minimum form of
dolus. Because there is mention that you lend something for a higher debt than it really
is, then you will be liable. E.g. a gold bracelet when you know its actually a copper
bracelet. Have a look at the additional notes – why it might have been more than
mere dolus and may have included culpa. If you ought to have known something
then you were be liable.
o Remedy: actio pigneraticia (contraria) – right to retain the object, even if the debt
is paid, if there were costs that have not been paid or damage – then you also
have the right to hold the object until the damages/payments have been made
good.
• In modern SA law we still have pignus but only mere consensus is needed, you do not
need to hand the thing over. The limited real right is only created when the thing is
handed over.

B.) Contractus re innominate (without name)

Introduction:

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 • When we look at the law of contracts, for a contract for be enforceable it had to fit into
one of 4 categories (contractus verbis, litteris, etc)
• But we did find certain contracts that looked like contracts but they did not fit into one of
the categories
• Trade or barter à permutatio

Problem:

• Parties want to exchange one thing for another; what if one of the parties did not
perform? Therefore there was a need to make this enforceable in the form of a contract.
Some scholars said this was merely a contract of sale, however when looking at a
contract of sale, the price has to be in money.
• Classical law – solutions. We wanted it to more of an agreement and we wanted it to be
enforceable. Another way to do with is to use two stipulatio – i.e. two promises
o Restitution-condictio / actio doli
§ They agree on an exchange. One party delivers and the other doesn’t
what can you do? The first solution is restitution – you want to get back
what the one party has perform as if not contract has been performed and
this can be done through a condictio or the actio doli. The reason behind
this trade has failed and that is why there is a restitution.
§ Or you can enforce this action if you cannot claim something back, for
example if you have built something for someone. You can do this by
enforcing the actio doli as well for fraud.
o Actio in factum
§ The first situation is not ideal so how do we help the first person to enforce
the contract to force the other person to give what they promised? The
praetor allowed the actio in factum in certain circumstances. This is an
agreement that is enforceable with an action.
§ “An action granted in a specific case.”
• Post-Classical:
o 400 AD: actio praescriptis verbis
§ they saw the actio as a 5th category. Therefore they came up with this
referring to the action brought together be specific words. It means the
action had to be done in specific words. We are now concerned with
enforcing the situation as opposed to restitution.
th
o 6 century AD: contractus re
§ Justinian decided he did not want to recognise a 5 category of contracts.
So he decide we was going to put it under contractus re.
o 11th century AD: contractus re innominati
§ With all the development there was no name for the category and now we
finally had a name for the category
§ It means “nameless contracts”
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 § Theory question: Problem with this name – this name doesn’t really
make sense because it refers to nameless contracts however the
contracts do have names. It can be confusing because real contracts refer
to a thing that is given and this is not always the case in this situation you
can do something for someone else. And the nature does not fit into
contractus re, they were all imperfectly bilateral – the whole idea behind
this contract is to be perfectly bilateral with a duty on both of the parties.

Elements:
• Consensus – this is not enough on its own
• Performance by one party – doesn’t have to be something that was given, it can be
something that was done.

Types:
• I give or do something so that you can do or give something
• If you look at a set of facts and it cant fit into anywhere else it will fit in here.
• Specific types: (self study – don’t need detail, you just need to give an example)
o Permutatio (exchange)
o Aestimatum (peddling)
o Precerium (tenancy at will)
o Transactio (compromise)

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Contractus ex consensu
(Out of consensus)

Introduction:
• Mere consensus was enough – there was nothing else required, no words, no writing
and no handing over of the thing. The four types are:
i. Emptio venditio (sale)
ii. Locatio conductio (lease)
iii. Societas (partnership)
iv. Mandatum (mandate)
• Gauis – arise by agreement because for the agreement to come into being you don’t
need special words or writing. It is enough for the parties to come to an agreement
• Contracts of this kind be made by people of distance by means of a letter or a
messenger, you are conveying a message this is not representation.

Development:
• Out of the contract of sale and it is one of the most remarkable words of Roman
jurisprudence.
• Some of the contract are exactly the same as how they are in South Africa.
• There was a need for contracts that are simple and commercially meaningful.

Origin:
• When we looked at the other types of contracts they were available in the times of the
XII Tables – they developed of the economic boom after the first Carthage.
• The praetor was in charge of the affairs of foreigner and then were later extended to
included Roman citizens.

Nature:
• Bonae fidei negotia – good faith taken into account.
• Perfectly bilateral – both parties and rights and duties and had to perform.
• “Modern” – simple and commercially meaningful, effective. There are some archaic
elements in the contract of lease, they could be evicted quite easily but this is the most
modern type of contract.

1. Locatio conductio:
(Lease)

Purpose:
• Thing or a service for a specific period of time and compensation has to be in money.
• With commodatum remember there is no counter performance.
 Development:
• Roman law: 1 contract (locatio conductio) for all three aspects (thing, services, piece of
work)
• And then in the middle ages they realised the difference between the contracts did in
fact differ (and we will refer to these different contracts), they became their own
contracts:
o Thing – locatio conductio rei
o Service – locatio conductio operarum
o Piece of work – locatio conductio operis

Parties:
• Locator – places something at the disposal of another party
• Conductor – takes wealth from the other party
o LC rei (hire of a thing)
§ L = lessor
§ C = lessee
o LC operarum (hire of services)
§ L = employee
§ C = employer
o LC operis (hire of a piece of work)
§ L = lessor
§ C = independent contractor

THING
Rei:
RETURN OF THING & MONEY
Locator  

Conductor  
SERVICES
Operarum:
MONEY

Operis: THING

SERVICES

Nature:
• Negotium bonae fidei – based on good faith, this did not place as large a role as it could
have played.
• Bilateral and reciprocal – two parties, and one performance in exchange for another.

Elements:
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 • Consensus:
o Regarding the subject matter (not necessarily a thing) and compensation (has to
be in money but there is one exception and the price has to be certain or
ascertainable).
o It also has to be real, you must take the subject matter in account and what it is
worth. E.g. if you lease a farm for one coin it will be seen as a donation because
the farm is worth must more than one coin.

Social function:
• Problem à exploitation of leases and the lease of thing and the lease of housing in
Rome. This had to do with overpopulation. Also problem with eviction, he become a
detentor so he had no interdicts to get the thing back. Also problems with fire and the
waste disposal system.
• Protects the rich lessee and not the poor lessor.

Distinguish:
• Emptio venditio (sale) – return to this later
• Contractus re – no compensation or counter performance.

2. Locatio condictio rei

Definition:
• Agreement in terms in which the lessor provides the use and enjoyment of a specific
thing to the lessee of which will be compensated in terms of money.
• Movable and immovable things.
• If it concerns movables – it is usually non-consumables because you have to return the
same thing. But again, if you lease fruit but they don’t have the intention of eating them
they can be leased.
• You must look at the additional notes and the lecture framework!
• When we look at immovable there is a negative position of the lessee.
• If a farm is being leased then it is called colonia patriaria and they still have to pay rent
in money and some of the rent should be paid using the harvest.

Nature:
• Perfectly bilateral or reciprocal.

Duties of the lessor:

• Transfer possession
o Legally unprotected possession (detentio) à must specify!
o There were no interdicts available for the lessee, if a third party evicted him then
the lessor had to do it because the lessee did not have any remedies.

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 o Undisturbed use and enjoyment – where you provide housing, if there is a lack of
light then this will be a disturbing the use and enjoyment.
o What if the lessor sole the property with out the lessees permission? There was a
position of sale-break-lease – no action against the new owner and the new
owner could evict the lessee. He can claim damages but he will still be evicted.
• Maintain res
• Compensate
o Damages – caused by the thing
o Duty of care: culpa levis – liable for negligence. 2 exceptions: There are 2 texts
we need to find the information for, the lease of vine – if there is leakage then he
is strictly liable.
§ And poisonous plant on a farm – the lessor will only be liable if he knew
about the poisonous plants.
§ Prof Zimmerman said the normal duty of care is culpa levis. You must look
at how easy it was for them to identify the risks. If you leased out wine vats
then you were in charge of making the wine and you should know if there
is a defect in the wine. That is why there is strict liability.
§ However if you look at the farm, they were quite big and might not have
even lived near them and it would be difficult to find out whether there
were poisonous plants.
§ So it is important to note how easy it is to find out about the defect and this
will tell us the type of liability.
o These duties were enforced by the actio conducti – “lessee’s action”

Duties of the lessee

• They were enforced with the actio locati

• Pay rental: (merces)

o Certum (certain) – objectively obtainable
o Verum (true amount) – not a donation, i.e. not one coin for a farm. Can be
multiple payments or one payment and it had to be in money(except for the one
except discussed earlier: colonia patriaria).
o Example: A and B both have their own ox and they decide to swop ox’s – can this
be seen as a lease? No, it must be paid in money.
• Care for res
o Cupla levis à he has to take care of the res – culpa levies, the reasonable man.
If you are negligence you will be liable. This is damages cause to the thing, for
example does the horse get sick, does the slave break its leg, negligent methods
of farming.
o The lessee can be held liable for damages caused by a third party à your oldest
slave falls asleep and the house burns down, you could be liable. If you are
negligent in the choice you make you will be held liable.
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 • Duty to return thing
o Always has the duty to return – in the same condition but normal wear and tear
excluded.
• Allocation of risk
o Supervening impossibility – something happened after the contract and now it is
impossible to perform
o à cause
§ We only look at vis maior (acts of God) to the leased object.
o Periculum est locatoris
§ i.e. the risk is on the lessor.
§ Something like a flood makes it impossible to perform, the lessee will no
longer have to pay. He is no longer entitled to ask the lessee to pay the
rental à Within lessee’s “control” remissio mercedis, so only if it is within
the case of the lessee, a crop failure or a plague of locus’ then they will
be liable.
§ So if it is within his sphere of control then he will still have to pay he rental,
and you will not excused because the risk is on him.
§ Exception: somewhere in the 2nd or the 3rd century there was a reduction
in the rent. The lessee could approach he emperor and he would grant him
a remedial of time and as soon as he has a normal harvest again, he will
pay the rent from which he used the harvest and then still pay the rent he
initially owed.

Termination (self study):

• Who has the power to terminate the lease?
• When do they have this power?

3, Locatio condictio operarum

• Hire of services

Definition:
• Agreement in which the employee makes services available to the employer for the
payment of money
• Employment – operea (as opposed to a specific task – operis)
o Types of service?
§ Artes iliberales (unschooled labour, not professional labour, normally
done by a slave, not actually done by a slave though! If a slave is doing
the work then it is a lease) vs artes liberals (professional services: doctor,
architect, etc)
§ Here we are looking at unskilled labour only. If it is skilled labour
then it is another type of contract.
§ Good faith will be taken into account
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 § Both parties have rights and duties à reciprocal
• Employer: renumerates

Nature of relationship:
• Employer has to pay and compensate in money and his duty of care is culpa levis
(negligence, including dolus) – he will only then be held liable.

Duties of the employer:

• The employee has the actio locati to enforce the employer’s actions.

Duties of the employee:

• Actio conducti
• Deliver service – he must deliver his service he has promised to do , remember
unskilled.
• Duty of care
o Culpa levis (negligence, including dolus)
• Lack of expertise à this can be seen as negligence. We are talking about someone
who does not fall into the professional category but you must be good at what you do.
So even if that person did everything he could do to prevent an accident, he will still be
liable if he was supposed to have a certain level of strength or skill to do this job.
• Imperitia culpae adnumeratur
• Supervening impossibility
o Risk with employer unless within sphere of the employer. E.g. the place where
you work, this would fall in the sphere. You will still have to pay them because the
risk is on you.

Termination: (selfstudy)

4. Locatio conductio operis:

• Hire of piece of work

Definition:
• Agreement in terms of which and independent contractor undertakes to complete a
specific piece of work as a whole project against payment in money from the lessor.
• Specific task – you have achieve a certain result, its not the amount of hours, it’s the
task itself that you must complete.
• E.g. making a piece of jewellery or building a house or transport contract or copying of a
manuscript.

Distinguish:
• Operis v operarum à
o We have to look at whether it is skilled or unskilled labour?
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 o Most importantly is the measure of control, how much does the person who
pays the money have? Does he just supervise? Does he give orders? Does he
provide materials?
o E.g. fishing – if the person paying (A) provide the boat and tell the person how to
do it = operarum. If A said go fish, on your on boat with your own instructions =
operis. This is because the measure of control is low.
o In the test, you must consider the measure of control. See whether it is low
(operis) or whether it is high (operarum).
• Operis v sale à
o If A goes to B and takes his own gold and he asked B take make him a bracelet =
operis. If he does not supply the gold then = sale.

Duties of independent contractor:

• Complete project
o On time – at the time they agreed upon or a “reasonable time”
o Approve – bonus vir – must complete it to the approval to the employer, he has to
use the standard of a bonus vir “upright man” – he has to be objective,
reasonable grounds.
• Duty of care
o Cupla levis – negligence including dolus – lack of skill would count as negligence.
o Custodia à the person has to take something into custody and look after
something. This is not the same as deposit because you have to do something to
the thing. For example, someone who washes/mends/alters your clothes.
§ Liability for everything except vis maior and theft.
§ Remember if you hang something out in the street was not negligent – this
was Roman times.
§ Damage cause by a third party – a column that must transported, he must
employee other people to help him. Even if he is not negligent himself, but
the people he was working with are, he will be seen as liable. You are
exposing the thing to a greater amount of risk.

Duty of lessor
• Renumeration à to pay the money
• Duty of care = culpa levis, towards damaged caused by anything you provided. E.g. if
you provide the ink to a scribe and the ink is poisonous and the scribe falls ill.
• Risk of supervening impossibility – risk of damages caused by vis maior. Initially the risk
was on the one doing the work, but this is a harsh situation because he is only entitled
to money after the job is done.
o Earlier: Labeo
o Late classical law: this was change – it resembled the other contracts, the risk is
on the employer. If you had to build something (all operis) and the ground is

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 unsuitable, this is seen as vis maior. The builder will still get paid because the risk
is on the employer, but is the builder falls ill he will not get paid.
o If you give someone the material and the make something for you then it is
considered operis. However, with building whether you supply the building
material or not is not important, it will always be operis.
o Where is concerns renumeration at completion – it is operis, but not always, you
can pay in stages (building contracts)

Termination: (selfstudy)

Lex Rhodia de iactu NB NB NB test question!

• Aequitas à share in loss
o Specific type of operis: the transfer of goods by sea
o An act that is applicable to transfer of good by sea and the distribution by losses.
o Maize wheat from Africa and the ship runs in trouble and get out the storm and
they have to lighten the storm by throwing produce over board without regard for
whose it is.
o Solution: to make the person who benefit by this responsible partially for the
losses. This is about fairness. The loss is incurred for the common benefit – if the
benefit is common so is the loss.
o There is a distribution the person who suffered the loss has the actio against the
captain and the captain has a actio conducti against those who benefitted.

5. Societas
• Partnership
• Definition: its an agreement between two or more people with the intention of forming a
partnership undertake to reciprocally (everybody contributing) bind themselves to exploit
their contributions for a common goal. (not mere co-ownership!)
o Affectio societas
• Contributions – could be anything doesn’t only have to be money. One person could
give a ship and the other person could contribute navigation skills.
• Common goal – there must be a common goal, this does not have to be to make a
profit, it usually deals with a material benefit but not always. See additional notes. The
goal also have to be lawful.
o William v Emirate – they wanted to go to the court because they did not know
how to split the profit of stolen money and this was rejected and not dismissed.

Nature
• Negotium bona fidei – based on good faith, not necessarily perfectly reciprocal. But not
necessarily reciprocal that everyone’s duties will be the same.
• Underlying value – fratemitas – fraternity.

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Origin:
• Older: societas ercto non cito
• Classical law: societa

Types: (we will look at)

Conclusion:
• Agreement on (consensus):
o Contribution – co-ownership or partners? Does confuse the two, you may be
partners and have similar traits as co-owners but you are not co-owner.
o Identity of parties – you must know the identify of everyone in the partnership
o Distribution of profit and loss: the rule was it had to be equal.
§ This changed: the situation was that it can any distribution that is in
accordance with equity and distribution. It might be equitable that one
party share more.
§ This is prohibited: societas leonina à where one party only shares in the
losses (this includes expenses).
ú Some of the partners only shared in losses – you don’t want any of
the partners only sharing in losses, it doesn’t matter how many are
sharing in losses, it more about that some of the partners aren’t
sharing in any of the profits. Its okay if some partners only share in
the profits.
ú You must agree on how the profits and losses are going to be
shared and if there is no agreement they will be equal.

Legal transactions of socii:

• No representation –
o In classical law, a party acted in his own name, he will then only bind himself to a
third party. You cannot bind other parties to third parties. You will not have any
action against any other partner. (he may claim a contribution to his expenses)
o This is due to privaty of contract.
o You can act on behalf of a partner if you have an agreement.
o In post classical law they changed this so that when one party acted with a third
party he can act on behalf of the other partners.
• Right to disposal –
o You can only dispose of your own share, can dispose of the asset as a whole.
o If the members of the partnership change it dissolves and you have to create a
new partnership
o The other partners have a rei vindicatio if you do dispose of your share.

Duties of socii:

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 • Give promised contribution à give what you agreed upon, e.g. knowledge or material,
etc.
• Account for profits and losses à as per their agreement and how they are going to
distribute them.
• Duty of care
o Dolus à culpa levis in concreto
§ You should act with good faith and if you did not act with dolus you would
be fine.
§ Later this changed à this then increased to culpa levis in concreto – the
level of care a person shows towards his own good.
§ You should be careful for this reason when choosing your partner.

Remedies:
• Termination – ex voluntate
o By decision of the parties – this will end the partnership
o Or one of the parties can decide if they do not want to be apart of the partnership.
o Example:
§ On person decides he wants to leave for mala fide reasons.
§ He decides that his grandfather is about to dies and he will inherit and he
doesn’t want to share
§ What happens is that of everything happens as he hopes, he will still have
to share the profits because he is mala fide
§ However if this goes wrong, maybe he has to pay, he bears this loss
himself (the partnership is free from him but he is not free from the
partnership).
§ And it is only for this specific reason that he will be liable for losses.
§ So if you leave the partnership because you did not want to share it with
your partners and it is successful then you will be liable for this loss on
your own.

6. Mandatum
• Definition: an agreement in terms in which the mandatee undertakes to the request of
the mandator.
o Execute instruction without compensation.
o Doesn’t this seem odd to give someone orders without compensation? You can
give him a gift after if you would like, but this is not like a service being done and
then the person being paid.
• This is done gratuitously – which other contract is done this way?
• It can be a legal act – security.
• There is no payment à based on the idea of friendship.

Origin:
  85  
 • In manu dare – to give a gift but not necessary initially but later become necessary.
• See additional notes.

Nature of relationship:
• We would classify this as an imperfectly bilateral contract – one of the parties always
has duties and the other only in certain circumstances.
• In this case however, both parties usually do have rights and duties.
• There will however, not be equal duties – therefore, still imperfectly bilateral.

Duties of parties: Mandatee:

• Perform instruction à to do what is asked of him and to do it within the limits of this
instruction (not ultra vires). If someone tells you to buy something for 100 and you buy it
150, you cannot claim anything back but you must still hand over the object. You did not
follow the order, you acted ultra vires.
o This then changed and you could’ve at least claimed back something but you
would still suffer some sort of loss.
o Topical short question
• Does not benefit (mandatum tua gratia)
o It cant be for the benefit to the mandatee (the person doing the commission) – it
will be mere advise – mandatum tua gratia, its not enforceable and you cant
someone to court over it.
o For a mandate to be enforceable it must benefit the mandator or a third party.
o What about a third party and a mandatee? Read in the additional notes. See why
this would be permissible.
• Duty of care:
o Initially just dolus – no compensation, therefore duty of care is low because the
benefit is low.
o Cupla levis (honorarium) – it developed to this because of the honorarium i.e.
some sort of compensation after the commission was completed. Therefore the
duty of care was slightly higher.
§ What if you didn’t get a “thank you” gift? The judges should take this into
account when looking at the duty of care because it is based on bona fide.

Duties of the mandator:

• Accept consequences renumerate
o Ex causa madi – accept the consequences – you have to accept what he does.
§ Vis maior? An accident (casus)? Will the mandator have to compensate
the mandatee? It depends on the circumstances. If it is a risk you incurred
because of the fact you took on the task then you will be compensates but
if it is a normal risk of life then the mandator does not have to compensate
the mandatee.

  86  
 § If you job is to transfer thing by ship and someone asks you to transport
something then the mandator will not be liable, because he was already on
the ship any way because it is his job.
§ If you fall ill and it didn’t have anything to do with the task then the
mandator will not have to compensate.
§ If it is ex causa madi – induced by the task itself – if you were on a ship
and they tell you to go a specific way and something happens then the
mandator will have to compensate the mandatee.
§ You will compensate then for their expenses.
• Duty of care:
o Culpa levis

Application:
• Agency?
o Actio adieticiae qualitatis à see additional notes
o The mandatee cannot bind another party you can however get indirect
representation
o How it is done today:
§ A, the principal who gives the agent B, who askes C to complete the
contract. As soon as B does this, he disappears from the contract. The
contract is then between A and C. There is a direct legal bond between A
and C not A and B.
o Roman law:
§ Working with indirect rep
§ A cannot ask B to conclude a contract with C and then B disappears.
§ There is a mandate between A and B
§ And there is then a second contract between B and C
§ A cant go to see and claim the house
§ What would happen is that A would institute actio mandate against B or B
institute an action in terms of sale against C
§ Same thing with C, he has to go via B
§ B can claim back any expenses from A – C cannot claim is directly from A.
§ There is therefore no direct link between A and C.
ú If C wants to claim the purchase price he’ll have to go through B
ú But there was an exception due to the demands as commerce.
ú It doesn’t really help that you C the right to claim if B is a slave of
the famila of A.
ú Therefore C could claim from A in this instance à actio adieticiae
qualitatis – A still cant claim directly from C! its only C that is
protected in this action.
• Cession?
o Procuration in rem suam à applicable of mandate in cession
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 o A = Mandator / creditor
o B = Mandatee / new creditor
o C = Debtor
o A has a claim against C and A then requests from B to institute the action his
behalf – if B can keep the result then we have a result that is similar to cession.
o This is then a type of cession but not the same as modern cession because:
§ The debtor C can decide who he wants to pay (A or B).
§ A can recall the procuratio or cancel the mandate at any time.
• Suretyship?
o Mandatum qualificatum
o Mandate – A tell B to loan mpney to C – one of the duties of the mandator is to
compensate – C doesn’t pay back, A has to compensate B.
o A therefore stands surety for C.
o Differences:
§ You can automatically go to the debtor and if he cant pay you then you will
have to go to the mandator.
§ This is a good faith action – if the reason why B doesn’t get his money
because e he takes to long then A will be freed from that obligation.
§ Litis contestatio will only have an effect under stipulatio. (No effect here)
§ A had automatic right of recourse against C.

Termination:
• Self study

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Emptio Venditio:
(Contract of sale)

Introduction:
Conclusion of contract of sale à these notes will be used in Contract Law 371/2 & 411
• Merx – subject matter of the sale (price and consensus)
• Pretium – price
• Consensus – agreement
• Conditional contracts
• Consequences of the contract of sale
o 4 stadia
i. Conclusion of a contract
ii. Passing of risk (focus is here)
iii. Physical delivery
iv. Passing of ownership
• Duties of seller and buyer
• Special clauses

Historical development is on Sunlearn however, you will not be tested on it *

Conclusion:
Introduction:
• Preliminary definition à emptio venditio
o Agreement in terms of which the seller undertakes to give undisturbed position of
the thing solved (not ownership) of the merx and the buyer in turn undertakes to
pay the purchase price.
§ Consensus (the intention to buy and to sell)
§ Merx (subject matter of sale)
§ Purchase price (pretium)

I Merx
Has to meet certain requirements to be valid:
• Has to be res in commercio à falls within trade and capable of private ownership and
can fall part of your estate.
• Not res extra commercium!
o Res sacrae
o Res religiosa
o Res publica
o Liber homo – a free person or “son or daughter of a patrician”
• Incorporeal as well à it does not matter whether it is corporeal or not. You can sell a
servitude and an inheritance.
 • NB We are talking about the sale of a thing, we are not looking at the sale of a
service.
o If A goes to B and he asks B to make some bricks and A takes his own clay to B
to make the brick. This is Locatio conditio operis.
o If B uses his own clay then we are looking at a contract of sale.
• Exists at time of conclusion of contract (possibility of performance)
o Something that is fictitious – a fictional character
o This transaction is void.
o Centaur – half man half horse.
§ You cant sell an inheritance that the person is dead or an animal that is
still alive that you need for transport.
ú i.e. something that does not exist at the time of conclusion of the
contract or has seized to exist.
ú However there are exceptions:
• Emptio spei à sale of a hope, wish or expectation. A and B
agrees that A is going to buy all the fish the B is going to
catch for 10 gold coins. So if B does not catch anything or
catches more than the purchase price then A will still have to
pay the agreed amount. Bona fide contract – if B does not try
to catch fish then A will not have to pay. Another example
would be to buy a flock of sheep that will be born in the next
season.
• Emptio re speratae à you buy the thing hoped for – if you
buy all the lambs from a flock to be born at one piece of gold
per lamb. In favour of the buyer, there will only be a sale if
one lamb is born.
• The difference here is that we look at the intention of the
parties and how the price if determined. If the price is per unit
then it is emptio re speratae and if you are paying a fixed
amount of money for an uncertain amount of things then it is
emptio spei.
• Specific – cerum
o Not genus sale (but limited genus sale possible)
o Genus - type, if you merely refer to a type of thing, this is not sufficient.
§ It can’t be a slave you must specify which slave.
§ Exceptions:
ú A semi-specific sale is sufficient, buying 3 bottles of wine from the
vat down the road. When we know the place where it is coming
from, this is enough. when you refer to a limited genus sale this is a
limited contract of sale, this is however not perfecta. It becomes
perfecta when we see the wine.

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 ú Alternative sale à when you offer a choice as to which one you
will buy and it is the sellers choice as to which one he buys. There
is then a valid sell but this only becomes perfecta when the seller
decides.
• Not res sua / res emptoris
o The merx cannot belong to the buyer! You cannot buy something that belongs to
you.
§ Res sua – your thing
§ Res emtoris – the buyer’s thing
o It can however be res aliena – does not necessarily need to belong to the seller.
o You can sell something that does not belong to you! If the true owner comes
around, there will be consequences however, this does not invalidate the
contract.
§ This question could be combined question with someone who has lost
something and then this thing has been sold back to the original owner –
THIS WILL NOT BE A VALID CONTRACT OF SALE – he never lost
ownership because there was no intention.
§ Cant buy your own thing but you can buy an interest in your own thing.
ú If someone has required possession over your thing, you may
institute the rei vindicatio however this is lengthy. You can then
institute a contract of sale to buy an interest in your thing.
ú You can institute this over a servitude even if the servitude is not
registered. (unlike SA law)

Consequences:
• If it does not comply with all 4 requirement à contract void
• Purchaser = condictio indebiti (unjustified enrichment claim, to claim back the purchase
price)
• Fraud of seller = actio doli – claim back what he has performed (if there was fraud, you
can claim for damages)
• Seller
o Res mancipi à mancipatio à condictio ob rem datam à res nec mancipi à
traditio à rei vindicatio
o If the seller wants to claim back the merx what can he do?
o Classical: make distinction between res mancipi and res nec mancipi – this will
make a difference when you have to choose a remedy.
§ Res mancipi: abstract or causal à the underlying reason relevant or not?
Contract of sale and there was no reason then there is no transfer of
ownership. So is he the owner or not? If he is no the owner then he will
use an enrichment action – this will only happen if the reason for
performance fails. If res nec mancipi – where there is a debate between
abstract or causal, you can assume in this instance that it is causal – he
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 may use the rei vindicatio if you are still the owner (i.e. if the contract was
void you will still be the owner)
o Res extra commercio à this is different, the buyer is entitled to alittle more
protection, because this is more difficult for the buyer to determine whether it is
res religiosa.
§ Res religiosa = actio in factum à you may not always know if this is with
or without the commerce.
§ Liber homo = actio empti à claim back purchase price and damages.
ú Doesn’t know person if a free person. Treated as if the contract is
valid and the same remedies will follow.
o Res sua à buyer aware = donatio
§ This is seen as a donation if he did know.

II Pretium
• Nulla emtio sine pretio à no sale without a price
• Has to be a price before the contract of sale is finished

1. Percunia (has to be in money)

• In money because we need to distinguish from exchange or trade
o The rights and duties are different in exchange and sale.
• Partly in money
o In later law it had to be in money but it was not always clear and this lead to one
of the biggest debates between the schools.
o If it does not say the it is the post classical period you must discuss the debate
and you must know the different view points. (don’t have to know the school’s
names)
§ Sub felt that there is no difference between sale and barter – it should
be treated as the same contract
ú Barter was initially not enforceable so it would have been easier to
just give it the same rules of sale.
ú You have to determine who is the seller and the buyer – who ever
offered up their thing first they would be the seller.
ú This is not without merit – this developed out of the contract of
barter anyway
§ Proc – there is a difference between sale and barter
ú Their duties and rights differ
ú You have to work with money in the contract of sale.
ú In Roman law the barter transaction took place in the market place
à this is an instantaneous transaction.
ú In the Post classical period this argument was the one that was
accepted.
§ If a exchanges one thing for another then it would be barter
  92  
 § However there is a problem when it is partly in money
ú The jurists said this should be a sale
ú The original Roman law texts tell us that the price is in money and if
it is partly in money and partly in service then this is a sale. But
what about money and a thing? The Roman’s did not say anything
à we have to look at the reasons.
• Sub – said it doesn’t matter if it is partly in money and a thing
• Proc – they said the reason you need to look at the price in
money was to identify the seller and the buyer – if part of the
price is in money and part of the price is the thing we can still
see who is the seller and who is the buyer.
• Therefore we can deduce that if it was partly in money and in
a thing then it would be a sale.

2. Certum (certain, no subject to fluctuations)

• To be fixed by 3rd party?
• It is sufficient of you able to determine the price – the fact that it unknown does not
mean that it is uncertain.
• In Roman law, selling something for a reasonable price is impossible – because you
don’t know the price. The term “reasonable price” is not determinable.
• You buy something a specified price and the profit you will make if you resell it –
therefore the profit goes to the original seller.
• Why would you want to do this? To discourage someone to resell it. This could be used
if you want an item to remain within a family.
• It has to certain or determinable – you must objectively be able to find out the price of
the thing. A reasonable price is not certain and this will not lead to a contract of sale.
• If we leave price determination to a third party – is this a valid contract of sale?
o This is the exception:
§ Labeo + Cassius à this debate is between specific jurists = no valid
contract, there would be no valid contract
§ Proculus + Ofilius à There is a valid contract as long as they name the
third party in the contract
§ This is a debate that took place in the Classical period – so you must
discuss this debate in a question. Not important that you remember who
said what, you must just know the difference. (If she does not mention the
time period then you just need to mention that there was a debate but in
the Justinian period then this was followed …)
§ If in the Justinian period, they followed the second view.
ú Valid contract but if the third party fails to determine a price then the
contract will lapse.
ú Remember this is a third party i.e. not the seller or the buyer.

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3. Vertum (ture, not simulated)
• Distinguish from donatio – because e.g. some donations prohibited
• There has to be some relation between the value of the thing and the price.
• Example she will use in the test: nummus unus
o One coin - where the price is not true
o You want to make it look like a sale by selling a farm for one coin but its not
actually a sale, you want to disguise it as a sale, this is not allowed.
o It is a valid contract but this will not a valid contract of sale.
o It will be treated as a donation.
o Why does this matter whether you donate something or sell it to him?
§ The reason we need to distinguish because of certain prohibitions.
§ A donation can be recalled in certain circumstances.
§ A donation has be registered in certain ways.
§ There were different consequences between contract and donation.
o It is sill important to look at the intention of the buyer and the seller.
§ If you sell a horse and its very sick and old and its only really worth one
coin then this will be a valid contract of sale (you must discuss both
scenarios in a contract of sale)

4. Iustum (just)
• This did not apply in the classical period – you could’ve sold something for whatever you
wanted in this period. You could severely overprice or underprice something and it
would still be a valid contract of sale. The parties would have to look after your own
affairs.
o You couldn’t go to court and ask them to adjust the price.
• In the post classical period it had to be just or reasonable.
o Iustum pretium – this developed to laesio enormis
§ This developed in the Post Classical period. It was very limited. It
protected the seller if he sold land for a price that was too low.
§ If the price of the farm is sold for less than the value of the farm. The seller
has a choice to cancel that contract, if he wants to stay with the contract
then the buyer must be is willing to pay the fill price of the land.
o Laesio enormis – also movables in favour of buyer.
§ Middle ages – this was extended. This does not matter whether movable
or immovable and now it also protects the buyer. The buyer would be able
to use this protect if the price was too high. She will use the words
“ridiculously high/low” or “disproportionate and this was only abolished in
1952.
o Diocletian in favour of seller of the land

III Consensus
• There has to be consensus on the type, the price and the subject matter.
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 • No consensus = no valid contract of sale.
• Improper: fraud or force (threat or physical force)
o In this sense, there is consensus but it has to be invalidated in court
o Subjective intention of the parties – what did the party himself intent
§ It did not matter whether it was one or both parties
§ It did not matter whether the mistake was reasonable
§ What did matter was that the mistake was material
ú This meant that it was the essential errors: the type, price or subject
matter à the contract will be void and the performance may be
reclaimed.
• Material error à not improper, the parties may not be aware.
o Error in corpore – error regarding the merx
§ Doesn’t matter if it’s the buyer or the seller – all will result in the contract
being void
§ A thinks he buy the slave X and B sells the slave Y. you must discuss
whether they are talking about the same slave with a different names or
two different slaves.
o Error in pretio – error regarding the price
§ A thinks he is buying something for a lower price and B is selling it for a
higher price = void contract.
§ Exception: if B think he is selling it for the lower amount then it is seen as
valid.
o Error in negotio – error regarding the type of contract
o Error in substantia – Marcellus did not agree: valid contract but because of the
mistake it is not enforceable. Then you would not be able to claim it back.
§ The most important in terms of the errors – here we are looking at the
substance. The parties are thinking of the thing but there is a mistake
regarding the substance of the merx.
ú Material, trade class, decisive attribute
ú E.g. gold v copper, silver v tin = we are referring to the material.
ú The problem is when you read the texts that classify something as
this mistake, it doesn’t always relate to the material that the thing is
made of.
ú E.g. you think you buying wine but your buying vinegar – both made
out of grapes.
ú E.g. where you think you’re buying a female slave but it is a male –
same substance.
ú You should look at the trade class that something falls into.
ú In an exam you must go further – you must explain why it is error in
substantia – mistaken to the substance or trade class.
§ However! There is another explanation which does not fit into this
example.
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 ú A mistake regarding a decisive attribute – if you knew the that the
parties did not know about the merx then there would be no
contract.
ú A villa that has burnt down or olive grove that has been blown over.
• If the contract was concluded before the villa burnt down
then the contract would be void – however, you are not only
buying the villa you are buying the land.
• The texts however don’t explain – if half or more of the villa
burnt then the contract is void. The merx does not exist at
the time of the contract and they are not agreeing on the
subject matter (the state in which the villa is in)
• You must therefore take note of the damage – if more than
half survived then it will not automatically be void.
• We are looking at the reason or the decisive attribute.
• The seller is suppose to find out what the true state of affairs
is
o Error in persona – a mistake regarding the person with whom you are concluding
the contract with. Its in fact more than the name, it’s the identity. The roman didn’t
discuss this in their texts exclusively.

• Consequence of material error = no contract

o Remedies:
§ Condictio indebiti
ú Enrichment action – will be able to get the purchase price
§ Actio doli
ú And if there is fraud he may your this to claim damages
§ Condictio ob rem dati (abstract)
ú Depend on res mancipi or traditio – if the seller delievered the merx
and the contract is void because of the mistake then this meant that
ownership did not transfer: abstract à ownership will transfer
therefore = rei vindicatio. But if traditio à ownership never
transferred, the seller will use the rei vindicatio.
§ Rei vindicatio

• Non-material mistakes (no impact on the validity of the sale)

o Error in nomine – the name, not the name of the person you are concluding the
contract with, it is the name of the thing.
o Error in qualitate (bonitate) – the quality: not an attribute.
§ Wine à sour wine
§ Gold à gold alloy
§ Oak à pine

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IV Conditional sale
• 3 main type of pacta adiecta (additional clauses)
o Addition clauses – relevant: distinction NB:
§ Conditions (condiciones)
ú Uncertain future event – for something that has not happened yet,
whether you know it will happen or not it redundant. E.g. delivering
something by ship, you don’t know if that ship will arrive.
§ Time clause or terms (dies) – we know will happen
ú Dies certus – you know it will happen and you know when it will
happen
ú Dies certus incertus quando – an uncertainty, we are uncertain
when something will happen, however we know it will happen
§ Assumption
ú Past or present – I sell you my slave provided that the ship is in the
harbour of Napels. It doesn’t matter whether it is the truth – we are
looking at the assumption. If we find out that the ship never reached
the harbour then there is no contract
o Time clause or conditions can work resolutively or suspensively
§ Suspensive (suspensiva)
§ Resolutive (resolutiva)
§ NB doctrine of fictional fulfilment
ú Where one of the parties interferes and prevents the condition from
fulfilling.
ú Prevent the ship from arriving in Africa then it is treated as if the
condition was fulfilled.
ú If it is not due to one of the parties then it will be seen as non-
fulfillment.

Legal position pending resolutive condition:

• Contract valid and perfecta
o There is a immediately a valid contract and it is dully operational
o Operation not suspended
• Come to an end if condition fulfilled
o Parties have to give back any performances they already made
o Any performance must be undone
• Justinian: ownership automatically reverts back to seller – rei vindicatio
o As soon as condition fulfils this automatically reverted
• Classical position uncertain (wont be asked to discussed)
• Money paid – condictio indebiti
o If he has paid with the purchase price then he can claim it back
• E.g. I sell you my slave unless the ship arrives in Africa

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 o If the ship is delayed, then you will have money to feed yourself and the slave – if
this condition fulfils the conditions comes to an end and anything given/done
must be returned.

Legal position pending suspensive condition

• Valid sale – spes or obligatio – valid when the condition has been fulfilled
o There is an existing obligation here and this obligation can be inherited, but
whether or not it is a hope is a debate – therefore don’t say that it is a valid sale.
• Enforceability and operation suspended
o You cant force the seller to give the slave first and you cant expect the buyer to
pay now, you must wait for the condition to fulfil
o Custodia – seller has a duty of care.
o If the condition fulfils then the buyer can claim damages if something had happen
to the object before the condition was fulfilled.
• Not perfecta (relevance later)
o Has to do with the passing of risks
• Money paid: condictio indebiti
o If the money has already been paid over he will be able to claim it back. If the
seller has already delivered, we look at the method. If it was traditio – no sale
because no causa.
• Purchaser not owner with transferred by way of traditio – rei vindicatio
• Mancipatio
o He wont have the rei vindicatio he will use the conditio.
• No usucapio pro emptore
o Before the condition is fulfilled, there is no prescription in favour of the buyer.
There is no causa pending the fulfilment. When the condition fulfils the contract is
fully operational.
E.g. I sell you my slave provided that the ship arrives in Africa

Legal position pending resolutive time clause

• Contract of sale valid and perfecta
o When the certain event occur – it is resolved. This is automatic, they don’t have
to approach the court.
o Ownership will revert back to the original owner.
o Rei vindicatio and condicitio indebiti
• When certain future even occurs contract of sale resolves
o We are certain it will happen we are just not certain when
• Did not occur often

Legal position pending suspensive time clause

• Valid sale and obligation
o I sell you my slave until X dies or on the 15th Oct
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 • Enforceability postponed
o The custodia comes into existence but it cannot yet be enforced
o Duty of care is on the seller at this stage
• Not perfecta
o Imperfecta
• NB! Money paid: no condictio indebiti because money was owed – only when the money
is owed may you use the condictio indebiti
• Seller cant used the rei vindicatio – cant take to court before the event occurs, if you do
you cannot claim it back with the rei vindicatio. There is a causa.
• Usucapio pro emptore can take place – prescription in favour of the buyer.
o There is a causa therefore, prescription may begin.

If you add a condition that is immoral, illegal, impossible, the effect is that the whole
contract is void! Not pro non scripto *

Consequences of contract of sale:

Introduction:
• Four stages of the contract of sale
i. Conclusion
ii. Passing of risk
iii. Physical delivery
iv. Passing of ownership

• What if the merx id damages or destroyed after the conclusion of the contract and
before the delivery of the object – must buyer still pay price?
• What’s not important is whether is it damaged or destroyed, if the reason is something
less that vis maior we look at the duty of care of the seller.
• If it is vis maior we look at who bears the risk in terms of the risk rule.
o Seller has a duty of care if less the vis maior – if could have prevented, actio
empti for damages
§ Classical – duty of care: custodia – he will not be liable for vis maior. But
that is all, anything else he will be liable. Theft is a different case for theft –
here we look at the negligence to see whether they had a duty of care.
§ This duty of care lasts up until the delivery of the merx to the buyer.
o If vis maior – who bears the risk à this also includes the slave dying if it was not
negligence. In general, this risk passes to the buyer when the contract is
perfecta.

Risk rule in Roman law and SA law:

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 • Once risk has passed, buyer must pay even if merx destroyed or damaged through vis
maior (the seller cannot deliver) – if the risk is on the buyer, he will still have to pay the
full purchase price.
• Risk and benefits passes when contract is perfecta – the merx is still with the seller, if
there are any fruits also go to the buyer. This goes along side the risks.
• Perfecta = this means that nothing outstanding except performance (payment of
purchase price and/or delivery of merx)
o The merx must be certain, the price must be certain and there are no pending
conditions – the only thing outstanding is the performance.
o This is different to when the contract becomes valid

Three requirements before perfecta:

• Merx must be certain
o Limited genus sale – to a certain place or a certain someone: this is a valid
contract but we don’t know which object they will take, the objects have not been
identified à not perfecta. Only once these bottles have been identified, by being
set aside or something, then the contract will be perfecta.
o If we are talking about wine in a vat then the wine needs to be separated from the
vat in order for it to be identified.
o If it is an alternative sale – either slave A or B, this is a valid contract but it is only
perfecta once the seller has made his choice.
o Therefore you must make sure that the contract is certain enough to be perfecta.
• Price fixed
o Sale at mensuram once weighed, counted, measured
§ Sale where something has to be weighed, counted or measured
§ The contact will be valid if you say I’m going to sell you the fish in my
basket however this is not certain enough to be a perfecta contract.
§ Only once the fish are counted and the price is established it will be
perfecta.
o Price to be determined by third party – when price is determined
§ If you name the third party in the contract then it is valid but it is only
perfect when the third party has determined the price.
• No unfulfilled suspensive conditions
o Only the condition has been fulfilled then the contract will be seen as perfecta.

NB The difference between validity vs perfecta *

Other aspects or risk rule

• Conditional contract: split (double) risk rule
• One party bear risk for destruction and the other with deterioration (both due to vis
maior)

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 o Normal principle in case of destruction of merx pending fulfilment of condition: not
perfecta, seller bears risk, buyer does not have to pay
§ The merx is destroyed due to vis maior = risk is on the seller, did not
pass to the buyer yet.
§ Because it has not been delivered yet
o BUT merely damaged pending condition and condition is later fulfilled: buyer
bears risk, must pay full price
§ The buyer still has to pay purchase price and cannot pay a lower price.
This is because the risk of deterioration already passed to the buyer.

• Alternative sale:
o If both things destroyed simultaneously – must buyer still pay price or only if
seller has already made choice?
§ The risk of destruction while the alternative sale it still imperfect – two or
more choice. E.g. you are selling either slave A or B and it is the sellers
choices.
§ Damaged, same rule. Destruction, different rule.
§ If one of the slaves dies, then the seller no longer has a choice, he has to
deliver the other slave – the buyer will have to pay.
§ However the risk of both or more alternatives being destroyed at the same
time is on the buyer. E.g. if all the slaves are on a ship – the risk is on the
buyer.
§ The buyer will still have to pay the purchase price

o Effect of mora à a form of a breech of contract (you are late)

o Some time after the contract was due the object that was meant to be delivered
dies. In this case the seller is liable for any damaged or destruction regardless of
the reason – vis maior or his fault.
§ Seller in mora debitoris (failure to deliver)
ú The buyer will not have to pay the purchase price AND he can claim
the damages.
§ Buyer in mora creditoris (failure to fetch or to take delivery)
ú What if the buyer fails to fetch the merx?
ú The buyer was meant to fetch the merx at a certain time and place
and he is late – he cannot take delivery
ú The seller has a duty of care (classical) custodia – including theft
ú This is usually up until the moment of delivery
ú Does the seller still have a duty of care? Yes, but it is lowered
because he is late.
ú So something happens to the merx (not vis maior – the buyer is
liable anyway for this) the seller will only be liable to intentional
damage (dolus)
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 o Any jurisdiction for rule? – page 290 of Zimmerman
ú Nicholas à yes this is still the property of the sller but if we look at
his economic interest it is to deliver the merx – after become
perfecta – this is already for the count of the buyer
ú If there are any fruit, it goes to the buyer, not the seller
ú The buyer is already entitled to a resale and make a profit
ú So the any interest that the seller has is to deliver the object
ú This is the justification as to why the buyer should bear the risk

Duties of the seller:

• Duty of care until delivery

o Classical period – custodia
§ This lasts up until delivery – so if something happens up until delivery and
it is vis maior then the buyer it liable
§ This is a high duty of care and includes the lower duty of care – negligent,
intention, theft.
o Justinian – culpa levis in abstracto
§ Only intention and negligence
§ If you didn’t take any steps to avoid it – if it unavoidable then there is
nothing you can do. It has to be something you can foresee and avoid and
you don’t do anything, then you will be liable.
o If seller in mora debitoris
§ If he meant to deliver at a certain stage, he will be liable.
o If buyer in mora creditoris
§ If the buyer is late, the duty of care of the seller is lowered to dolus
§ He has a duty of care until the thing is delivered

• Vacuam possessionem trader – duty of the seller

o Deliver free and undisturbed possession
§ This is usually self study but it is not in the exam
§ What she wants you to know is that there no duty on him to deliver
ownership, only free and undisturbed possession

• Warrant against eviction

o Sale of res aliena valid contract
o Does not have to make buyer owner (if seller is owner, will eventually transfer all
his rights)
§ It is not a requirement that the owner is the one who it selling it. Because
in Roman law it was so diffuclt to prove that he is the owner before he
could sell something, therefore it was not a requirement. You can validly

  102  
 sell something that does not belong to you. However if the buyer is evicted
he has remedies to protected.
§ If the seller is the owner, then the buyer will be the owner and there will be
no problem. However it is not a requirement.
o Liable if someone with stronger right evicts buyer
§ Is where the sller is unaware of the fact his is not the owner, if he knew
that he was not the owner then he is acting in bad faith and you can use
the actio emtpi. Here we are looking at when he thinks he is the owner but
he is not.
§ This is automatic that there is a warrant against eviction however this is
not where it started.
ú NB Actio auctoritatis (XII Tables)
• Only with mancipatio – res mancipi (can be transferred in
other ways but in order to use this remedy we are looking at
this method only)
• Does not ask the seller to make the buyer the owner, what it
did require was that the buyer can go to the actual seller and
ask him to represent him in the proceeding. If he refuses, he
immediately is ordered to pay double the purchase price. If
he does assist and he is not successful then he will also
have to pay.
• Seller is representative in proceedings
• Double purchase price
o Initially this was done because the seller should knoe
whether he is the owner or not and the remedy for
theft was that you pay double the price but this was
not only the case
o The seller will not only know if he is the true owner, if
he thought he acquired ownership through
prescription but he didn’t.
o Here we are compensating the buyer and not
punishing the owner for anything he did.
• In the classical period you could use this but in the Justinian
period this was abolished.
ú NB Stipulatio duplae
• XII Tables
• If you transferred something that was not res mancipi and
was not transferred through mancipatio then you would use
this remedy.
• Also if they were not Roman citizens – however this was
extended to valuable res mancipi
o Stipulation for double
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 o If the buyer is evicted then the seller has to pay
double the purchase price
• Double purchase price
ú Habere licere
• Something of lesser value was sold and it was res nec
mancipi
• If something inhibited/disturbance the enjoyment then you
can claim damages and you would claim that actual loss. But
we are not actually sure.
• Developed later
• Actual loss
• Classical period this was seen as undisturbed possession
o NB Actio empti:
§ Initially: dolus or warrantly that owner (developed in 200 BC)
ú If there was dolus on the part of the seller (he knew he was not the
owner) or when he expressly warranted that he was not the owner
of the object being sold.
ú Common practice to include a stipulatio or some form of protection
in case of someone interfering with your res. And if you don’t
include it you are acting in bad faith. You may in force anything that
was in the form of good faith.
ú If the buyer goes to the seller and he wanted an actio and the seller
refuses then he has to pay whatever it due in terms of that
stipulation
§ Classical period: use actio empti to insist that make stipulatio duplae
(valuable thing) or stipulatio habere licere (other things)
ú You still have to use the actio empti to force him to give you the
stipulation.
ú However it became accepted that a stipulatio is part of every sale
and it is automatically assumed.
ú Automatically claim damages, you can claim that value of the res at
the time of the eviction.
§ Since Julian (consul 149 AD): can automatically claim damages with actio
empti – value at eviction
§ Stipulatio duplae remains alternative (and actio auctoritatis in case of
mancipatio)
o Withholding or purchase price when threatened by eviction
§ if seller first evict the buyer, then they can withhold their money/
ú Pre-Diocletian – can withhold in spite of offer of security
• You had this right even if this right had security
• Even if the seller was prepared to give security they could do
this
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 ú Diocletian – can withhold unless security provided
• Only if security was provided.
o Similarities of the actions: (the NBs)
§ First two – actual eviction, and has to be the result of a court case or a
settlement out of court.
§ Actio empti differed – you could use even if you were not evicted - when
the person who sold the res to you was not the owner but through other
means you become the owner. (if the true owner donates it to you).
ú You can still use the actio empti against the seller, because he is
not the true owner.
ú The reason why you are now the owner has got nothing to do with
what the seller did.
§ Actio autoritatis and stipulatio duplae à available where the eviction is
complete or concerns something serious. This can be the enforcement of
any real rights that the buyer thinks he is getting and it is taken away from
him, e.g. usufruct or loss of possession. If a limited real right is over the
property (praedial servitute) you can use the actio empti – if it is something
bigger than this though you may use the other 2 actions.
§ Actio autoritatis – claim double purchase price whereas actio empti – what
you made in profit at the time, this is normal less than double of the
purchase price. You cant claim with the actio empti double the purchase
price.
o Requirements for action for eviction:
§ Actual eviction, not merely threatened (this must be as a result as a defeat
in title. If the buyer is evicted because of a third party or subsequent act
then he cannot claim via this route)
ú E.g. theft or the state evicting you.
• Also required if by means of legacy or donation from true
owner
• If threatened, and not yet paid – withhold price, unless
security
§ As a result of defect in titie (ownership) at ctc conclusion
§ Not later expropriation / robbery (=risk)
§ Not fault of buyer – this means that the buyer needs to give notice
ú Give notice
ú Virilise defensio à if you cant find the seller or the seller does not
want to give involved, you must use this action. If a third party
claims he is the owner, you cant just tell them to take it, you must
try and defend it.
ú Otherwise onus on B à you can use the other action but the onus
is on the buyer.
§ Partial eviction also possible
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 ú If there are co-owners that still have shares, usufruct, any limited
real right.
§ No claim if pactum de non praestanda evistione (unless dolus)
ú There was an automatic warrant against eviction
ú If you used this action then you would exclude it
• If he knew he was not the owner then this would not be
enforceable

• Liable for latent defects

o NB: defect must exist at time of conclusion of contract
i. Old actions
§ Ius civile
ú Actio de modo agri (not NB for exam) – during transfer procedure it
was described bigger or better than it is – sell land delivered
through mancipatio and you describe the land bigger than it actually
is.
ú Actio ex stipulate (= warranty)
• Action for stipulation – different stipulations – does not have
the attributes that the seller said it had or there is a defect
• Depends on the content of the stipualtio
• Has to do with where the buyer askes the seller to give a
warranty that it does not have any defects or the
characteristics, if this differs then you may use this action
• The parties have to agree on this
ii. Aedilitian actions
§ First only slave and livestock in the Roman market place (only since 100
BC)
ú Undisclosed morbus vitiumve and character / social defects
• Illness or physical defect
• Certain rules on the market place and there was a list of rule
and defects that the seller had to tell the buyer about
• You don’t have to say which defect
• E.g. blind or TB – you can assume it was on the list – he has
to disclose to the buyer
• If the buyer still buys it then he will be liable
• But if he did not say then he will be held liable with this action
• Social or character flaws also had to be stated e.g. the slave
had a tendency to run away or the slave committed a crime
or if there was capital punishment or if he tried to commit
suicide or if he fought animals in the public arena or if his job
was to carry corpses
ú Dictum promissumve (not puffs)
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 • Either a statement or a promises which induces the buyer to
pay more than he should and then he finds out that it is not
true e.g. if you tell someone that you slave can play the violin
or if the horse is a race horse
• If it is something that it is “puffing” i.e. sale talk e.g. if you tell
the buyer that it is a pretty slave or the house was built well
ú Patent v latent defects – visible upon reasonable inspection?
ú Remedy: Actio redhibitoria (one of the aedilitien acitons)
• Instituted six month within the conclusion of the contract
o The buyer claims back the purchase price or any
expenses he induced due to the defect
o The seller gets the res back as well as any fruits
• Serious defects and dicta promissa
o The slave falls ill and its contagious the seller has the
choice though – he can decide if he wants to
compensate or not or whether he wants to take it
back. If he takes it back then he will have to
compensate or if he does not take it then he will not
have to compensate.
• Test: would reasonable person have bought merx if aware of
true state of affairs
ú Actio quanti minoris (Aedilitian actions)
• 1 year after the conclusion of the contract – price reduction
o Claim the purchase price and the value of that thing
o If you couls have a choice between these two
remedies you will use this one if it is a less important
defect
• For serious and less serious defects
o But if the 6 months are already over you can institute
the first one if it is a serious defect with a price
reduction
ú Both Actio redhibitoria and Actio quanti minoris à even if the seller
is innocent (if he does not know) and the buyer was not informed,
the seller is still liable. It does not matter whether he did not know.

iii. Actio empti

§ Since the late Republic – 200 BC
ú Dolus or warranty
• Where the seller knew about the defect and did not say
anything
• Or had a warranty that said something that was not true
• You can claim back more than the purchase price
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 • If there was no dolus you can still claim but no interest –
either price reduction or purchase price – you are not limted
by time period though
ú Full interesse – consequential damage
ú Also only for latent defect
§ Development
ú You could’ve used it for any sale when it was developed (not just as
the market place)
ú The thing s of which it was applicable also evolved to almost
anything as opposed to just slaves and livestock
ú It was also available or cases of any latent defects which were not
considered trivial
§ Summary
ú If there is dolus he can use the actio empti – the seller knew about
the defect and did not disclose it (can claim purchase price and
interest)
ú With a warranty you have to look at the situation – in the form of
stipulation?
• Then it could be more than the purchase price
ú Dicta promissa – statements that weren’t true – what you can claim
in the end will be the same

• Not act contrary to bona fide

Duties of buyer (This is NB for the second exam)

• Enforced with the actio venditi
• Pay the purchase price
o (read through the notes, not that NB)
• Accept delivery
o Most NB
o What is the effect if he is late? All you need to look at here *
§ Duty of care changes
• Compensate for expenses (NB here)
o If there is expense repair of medical cost and not due to the seller not taking care,
the buyer will have to compensate
o Medical, funeral, tuition costs
o Food and lodging in buyer in mora
o These are expenses not due to the seller
§ For example, a fired that was not in the control of the seller will not fall into
this category

Special clauses – not prescribed for exam

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   109  
Obligatio Ex Delicto
(don’t study quasi contracts for the exam – the lecture notes are on sunlearn. She has
marked on the document which ones are important and she will only focus on the
important stuff for the exam in class à if you can answer the example questions on
sunlearn then you will be fine for the exam)

Introduction
• Definition: a wrongful act that cases harm and given raise to a remedy
• Occurs automatically – the obligation
• Harm is compensated by money nowadays – Roman law, it was not always

Development
• Not prescribed

Characteristic of actiones poenales

• Not prescribed

Specific delicts:
i. Furtum (theft)
o Today this falls under criminal law – we don’t look at this too much because we
are dealing with private law
ii. Damnum iniuria datum
o The first of the delicts which are look at it this one and it concern patrimonial loss
o Lex Aquilia
iii. Iniuria
o Insulting behaviour – infringement on your reputation
iv. Others
o There are a whole lot of specific delicts in the extra notes, you don’t nee to know
this
o What you need to know that there was no general concept – they worked with
specific delicts

Damnum iniuria datum:

(Look in the additional notes)
• Regulated by Lex Aquilia

Introduction:
• Problem: damage to property
o Patrimonial loss
• Solution: lex aquilia
o Specific things to which it applied and specific situations
Original provisions:
• Three chapters – chapter 1 and chapter 3 and the most important here
• Chapter 2 (not NB) – fraudulent adstipulator

Chapter 1:
• “If any one unlawfully (iniuria) killed (occaederit) another’s slave or four footed
animal that grazes in herds (cattle - percudes) let him be condemned to pay a fine of
the highest value of the slain slave or animal in the preceding year.”
o Unlawful
o Slave or cattle must be killed
o Penalty – fine of the highest value in the preceding year

Chapter 3:
• “In respect of all other things, except slaves and percudes killed, if anyone causes
harm (damnum facere) by wrongfully (iniuria) burning (urere) breaking (frangere) or
crushing (rumpere) such things be condemned to pay the owner whatever the value of
the thing was / is in the preceding / next 30 days.”
o Wrongful – any ground for justification then it will not apply
o Chapter 3 would’ve applied if a slave or cattle has been damaged and not killed
o Must be burning, breaking or crushing – if you’re action did not fall into these
verbs then you can cannot claim delict in terms of chapter 3
o Within 30 days – preceding
o Here if it is all things (including slaves and cattle) and they are damaged /
destroyed (not in the case of slaves or cattle) then you may use chapter 3
Problems:
• What damages to which things covered?
o Read –
• How was damaged calculated? NB
o Value principle v interesse principle
§ Value – penalty is the value of the thing that was damaged – value of the
thing 30 days before the injury occurred
§ Interesse (extended to here in the classical period) – more detail later

Extensions on Lex Aquilia

• Problem:
o Very limited to specific things and specific was the damaged was caused. There
is a need for an extension. This occurred through Juristic interpretation and ad
hoc actions granted by the praetor (actio in factum – action granted by praetor in
circumstances where legislation would have been looked at)

Chapter 1:
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 • Verb: slay or fell down (caedere) à kill (occidere) à cause death
o Caedere – slay or fell down, you physically with your own hands do something to
the slave or animal (e.g. choking not with s sword)
o This later included occidere – to kill, so if you shoot the slave with an arrow or
poison
o The praetor made this wider – so if you create the situation that leads to the
death. E.g. if you place poison in the slaves drink but you don’t administer it fully
or if a slave is passing you on a horse and you frighten a horse and the horse
bucks and the slave breaks his neck
o You must explain the whole development of this even if the factual question just
asks about poison.
• Pecudes: wider
o Four legged animal grazing – extended to pigs, camels and elephants, etc. but
not a dog (not a herding animal – you must pick up on these details!)
• Measure of damages wider
o Value principle à interesse principle (now we’re looking at this)
o Losses are not limited to the thing itself. You could not initially claim more but
now you can with interesse.
§ Lucrum cessans – lost profits. If your slave was entitled to inheritance –
the owner of the slave would be entitled to this. If the slave was killed
before he got this then you would be able to claim it.
§ Damnum emergens - damage that came to light – 4 horses are taught to
work in a team and one of those horse are killed, you lose the value of the
team when that horse died. More that the loss of the horse you can claim,
you can claim the depreciation value of the team.
§ Non iure – initially the term iniuria had to occur wrongfully however later it
was interpreted to mean fault
§ Group of claimants: this was also extended – initially only available to the
dominis (roman owner) now the person who also had an interest – e.g.
lessee
ú Now not only roman citizen but also foreigners.

Chapter 3:
• Ways in which caused?
o Crushed (rumpere) à spoil / corruption (corrumpere)
§ Initially rumpere – then it was extended through juristic interpretation to
corrumperre (e.g. spoiling someone’s wine)
§ Then later extended if you set up the damage e.g. not tying a boat with a
rope or cutting the rope.
§ Last extension where you could claim even though the res itself was not
physically damaged – e.g. pushing someone near a river and their coins

  112  
 fall into the river. The coins themselves are fine but you can still claim the
loss even though there is no physical damage.
o Type of thing - read (not NB, as long as you realise that chapter 3 is applicable to
everything that is not included in chapter 1 and you could also use chapter 3 if a
slave or cattle is damaged and not killed)

Problem – very NB NB NB!

• A free man who:
o Dies – if he was the breadwinner of the family so the family suffers patrimonial
loss can there be a claim or not?
§ Initially only remedy was talio – retaliation. This is an important gap in
Roman law, you cannot claim in terms of the Lex Aquilia
o Injured – there are remedies available but they are not in terms of chapter 3. You
are not regarded as the owner of your own limb. You could use the XII Tables
with iniuria
§ Later an actio in factum was granted by praetor – if it was a slave or son in
power and there are medical costs or loss of income, you could claim here
§ If a free person is injured by extension you could also use this action. An
actio in factum and with this you could claim med expense or income you
can claim it.
§ Emotional damage? Cant claim – only patrimonial loss
§ Actio in iniuriam – specific for limbs
• Development regarding extent of damage, iniuria and claimants (see chapter 1)

Iniuria:
Introduction:
• Meanings:
o Non iure – unlawful
§ Without a basis in law – this was used in chapter 1 and 3
o Delict – iniuria
§ This does not concern patrimonial loss – concerns insulting behaviour
§ When you “diss” someone

XII Tables:
• Membrum ruptum
o Physical infringement of the body, some one tearing of you limb. Talio was
prescribed unless vengeance was paid off. Breaking a bone also had an action to
claim for damages
o Less serious physical infringment
• Os fractum
• Ither less serious iniuria
• Malum carmen incatere
  113  
 o Magical incantations
o The penalty was capital punishment
o Seen as worse than hurting someone

• Reform: praetor (they had specific delicts in specific circumstances e.g. talio – this is
primitive. Certain penalty’s were given and eventually become worthless due to inflation)
o The penalties were then abolished and the courts were given a discretion
o It also did not protect a person’s honour, so this was reformed first by the praetor
by edicts that said that we don’t look at the XII Tables and you have discretion.
But they said that is a person’s action fell into certain categories then it would be
seen as inuria
§ Specific edicta
ú Vulgar or public abuse – convicium
• A group of people that get together and insult a person
ú Attack on chastity
• First situation is when you kidnap a woman’s chaperon,
decent women would not be on the streets on their own so if
you took away the person walking with her then she would
appear as indecent and this is an attack on her sense of
honour.
• A young boy or girl that you are following around (sexual
harassment)
ú Defamatory conduct (ne infamiandi causa fiat)
• Following someone with unkempt hair, if you appear this was
in public this was seen as a sign of mourning and if you
followed someone in this state that person would be seen as
the reason why that person died. Thus you’re implying that
that person committed a crime.

• Reform: jurists
o Developed fault requirement? In terms of the XII Tables you did not have to prove
fault but the jurists reformed this
§ Animus iniuriandi – intention to commit iniuria. This is discussed that there
must be animus iniuria, but you cant say that it was consistently required.
o They also extended field or application
§ Infringement of interests
ú Corpus – body
• Preventing someone from using public facilities
• Somewhere you would be entitled to be, e.g. library
ú Dignitas – dignity

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 • Infringement on someone’s dignity is tearing off someone’s
close and you may also claim the damage done to the
clothes
ú Fama – reputation
• Certain circumstances when you choose to go to surety first,
you are implying that the person does not have the fund to
pay you
• Or force a virgin to undergo pregnancy test
ú Invasion of privacy – vi domum introire
• You burst into someone’s house or prosecution in the courts
• Vexatious prosecution

Indirect inuria
• Read – iniuria committed towards his children
• Against a married woman – most expensive

Elements of Iniuria:
• Act e.g. insulting behaviour against the person (doesn’t matter if third parties know)
• Wrongfulness (without justification, e.g. attack someone without doing so without self-
defence and must be the truth)
• Fault – after juristic interpretation this was usually used
• Causality – has to insult the person, if it is a robust person who does not care then he
would not have access to this action.

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