Unnamed contracts in Roman law appeared in the middle of the classical period, which lasted from 17 BC. e. 237 AD e. At this time, business practices began to replenish with new forms of commodity-money relations that did not fit into the traditional system of contracts. Therefore, their new appearance appears in Roman law - nameless contracts. They will be briefly discussed below.
Historical canon
Before understanding the concept and types of nameless contracts in Roman law, a few words should be said about the existing at the time of their appearance in the classical system of contracts, which included those that had a specific name. These include the following types of agreements:
- Verbal, consisting in verbal form by pronouncing a question and answer, after which he was given legal force.
- Literary, which had a mandatory written form. After drawing up the document, the contract was considered concluded, and the obligation was established. It was used in the activities of business enterprises.
- Consensual - was considered as a prisoner from the time when the parties reached an agreement. The transfer of things was already considered the execution of such a contract.
- Real - it entered into force only from the moment when the actual transfer of the thing was made, and not from the moment when the parties reached an agreement, even if in writing.
Next, the essence and specific differences of nameless contracts in Roman law from classical ones will be considered.
What is the point?
In order to protect developing economic relations, Roman lawyers introduced other types of contracts. They were provided with special lawsuits, but went beyond the general system of civil contracts. They did not have a name, and later, in the 4th century BC. e., Stefanius, a prominent jurist from Byzantium, called them nameless.
These contracts have the following differences from the classic ones. When one of the parties wants to conclude an agreement on certain conditions, while receiving benefits, it offers the other party an offer, that is, offers to draw up an agreement.
Such an offer may find expression in the following. This is the provision of some thing or the provision of any service. When any valuable property was transferred, the provider expected from the other side an equal counter-provision. That is, the transfer of things had to happen.
The receipt of such property or the acceptance of the service upon the fact indicated acceptance, that is, consent to conclude an agreement on the specified conditions. From this point on, the contract was considered concluded. The acceptor took upon himself the obligation to either provide an equivalent item or provide the corresponding service.
Thus, such a contract is bilateral, it must have a real condition, it must provide for retribution. What is the difference between anonymous contracts in Roman law and classical types? From verbal and literal they are distinguished by form. From real ones, they always give rise to a two-way legal relationship. From consensual - the absence of pre-agreed conditions.
Next will be considered varieties of nameless contracts in Roman law.
Wording
Praetor practice developed formulations of legal forms characteristic of nameless contracts, which are as follows:
- I give you with the goal that you give.
- I give you with the goal that you do.
- I am doing it for you with the goal that you give.
- I’m doing it for you with the goal that you should do it.
These formulations reflect the essence of these types of contracts:
- Exchange contracts.
- Bakery
- Giving with a condition.
- Estimated.
Next, attention will be paid to each of these types of contracts.
Varieties
Among them:
- An exchange agreement in which there was an exchange of property rights to two different things that belonged to different parties. This is the oldest type of contract, which was supplanted by the contract of sale. The occurrence of obligations occurred after the transfer of things in fact.
- The contract of the precaria, or the request, according to which the thing was transferred for use, and it was necessary to return it at the very first request of the creditor. In many ways, this agreement is similar to a loan agreement, but such an agreement was concluded on land and had no term. As a rule, it was practiced between rich and poor. The first of them pledged to provide services, such as voting in elections for a particular candidate.
- A deed of gift was not common in ancient Rome. Such a move was considered suspicious. One of its types, more acceptable, was the implementation of this action with the condition. That is, with the adoption by the donor of an obligation to carry out any action.
- Valuation contract. It provided for the transfer of a thing for sale, provided that after the expiration of the term the receiver must pay the agreed price or return the thing, and resembled a commission agreement. He was also called a junk contract. If a thing sold more expensive than the estimate, then the income was due to the receiver. If the goods were not sold on time, they were returned to the owner.