Aestimatum

There was, however, one exception. One transaction which could otherwise have fallen under the actio praescriptis verbis too seems to have acquired such a degree of typicality already at an early stage that it was singled out by the praetor and "clothed" with a specific action.

"tollendae dubitationis gratia: fuit enim magis dubitatum, cum res aestimata vendenda datur, utrum ex vendito sit actio propter aestimationem, an ex locato, quasi rein vendendam locasse videor, an ex conducto, quasi operas conduxissem, an mandati melius itaque visum est hanc actionem proponi".¹⁷⁹

We are dealing here with a transaction called aestimatum. Goods are given to a person (usually a pedlar), and they are estimated (aestimare) at a fixed amount. Within a certain time, the recipient either has to pay the amount agreed upon or to return the goods. The real aim of this transaction was to give the pedlar some time within which to try to sell the goods. Whatever he received over and above the estimated sum was his. Aestimatum thus combined elements of emptio venditio, locatio conductio (opens), mandatum and even societas.¹ Hence the necessity to introduce a special action if some kind of recognition was to be given to this type of arrangement. The structure of the actio de aestimato resembled that of any other actio praescriptis verbis; in particular, it was based on good faith and became available only with the handing over of the goods to the person who was supposed to sell them.

There were other "innominate contracts" which by the time of Justinian had become so well established as to have their own names: permutatio has already been referred to repeatedly;¹⁸¹ transactio and precarium may be added at this stage.¹⁸² But none of them came to be individualized to the extent that a special action was created; actiones praescriptis verbis were available in all these cases.

4.