Basic types of error in Roman law

(a) Verba and voluntas

If we turn our attention to Roman law, the last thing we can expect to find is, of course, a neat and logical theoretical framework for the problem of error.

Two things are clear, however.¹¹¹ In ancient Roman law it was only the declaration that counted. All legal acts were of a strictly formal nature, and whenever the prescribed form was complied with, mancipatio, stipulatio and whatever other legal acts existed were binding and effective. There was an irrebuttable presumption that the will of the parties was correctly and adequately reflected in, for instance, the verba of the old sponsio/stipulatio. Under these circumstances, there was, of course, no room for taking any kind of error into account. According to the law reflected in Justinian's compilation, on the other hand, certain types of mistake exclude consensus, the essential basis for the formation of contract. Ulpianus D. 18, 1, 9 pr. leaves no doubt about that:

"In venditionibus et emptionibus consensum debere intercedere palam est: ceterum sive in ipsa emptione dissentient sive in pretio sive in quo alio, emptio imperfecta est. si igitur ego me fimdum emere putarem Cornelianum, tu mihi te vendere Sempronianum putasti, quia in corpore dissensimus, emptio nulla est. idem est, si ego me Stichum, tu Pamphilum absentem vendere putasti: nam cum in corpore dissentiatur, apparet nullam esse emptionem."

For a valid contract (of sale) we need consensus. Such consent is lacking if the parties are not ad idem with regard (particularly) to the sale itself, or to the price, or to the object. For "not being ad idem" the term "dissensus" is used.

(b) Determination of the object of performance

Less clear, and consequently much disputed, is the position in classical Roman law. A variety of authors have argued that the reason why classical authors regarded certain types of error as operative was not the lack of consent, but rather the fact that the object of the performance was not sufficiently determined.¹⁹ They claim that what Ulpian really said in D.

18, 1, 9 pr. ran something like this:

"Si cum ego me fimdum emere putarem Cornelianum, tu mihi te vendere Sempronianum putasti (the sale is invalid, because] nee emptio nee venditio sine re quae veneat potest intellegi."

A contract of sale requires the determination, by the parties, of two essential matters: object and price. In the example discussed by Ulpian, vendor and purchaser have two different tracts of land in mind. Thus there is no object to which the contract could refer; hence the invalidity of the transaction. This argument sounds plausible enough. But the path to this result is paved with interpolation hypotheses which are as far-reaching and radical as they are unacceptable. According to Joseph Georg Wolf, for instance, the whole of D. 18, 1, 9 pr., apart from the example concerning the sale of land, is spurious.^[3055] But the consensus- oriented argument in D. 18, 1,9 pr. is supported by a variety of other texts.^[3056] ^{^[3057] In fact, we do not know of any classical discussion of mistake in the formation of contract unrelated to or detached from the consensus problem. Presumably, then (and this does indeed appear to be the prevailing opinion),²² classical law did not differ much in this respect from what we find in the pages of the Digest. Of course, the object of a contract of sale had to be identified. But this identification took place in the agreement of the parties. It was one of the main features of the contractual consent. Without it, a contract could not be said to have been concluded. It is only under this perspective, i.e. from the point of view of the more general problem of impairment of consensus, that the determination of the object of performance, emphasized by Wolf and others, obtains a specific significance for the problem of mistake in contract.}

It must be obvious from what has been said so far that the consideration of error started with the consensual contracts.

Not only were they based on the consent of the parties,^[3058] but the actions arising from them were also to be granted ex bona fide. This left the necessary room for the intention of the parties to be taken into account. Not surprisingly, then, the main dissertation on the problem of error contained in the Digest relates to the prototype of the consensual contracts, to emptio venditio. We have cited the first part of it already: it is the fragment D. 18, 1, 9 pr. Of central significance is the example relating to the Cornelian/Sempronian estate. The purchaser assumes that he is buying fundus Cornelianus, the vendor that he is selling fundus Sempronianus. These are the only facts provided by Ulpianus. He does not relate to us what the parties did in fact declare: a matter that would have been of the utmost interest to the modern analyst. Three different situations are conceivable:^[3059]

(1) The declarations of the parties were so vague and unclear that a specific fundus is not objectively identifiable—perhaps they referred only to a fundus in general, or they tried to individualize the tract of land by referring to certain features which were (unbeknown to them) common to both. This would be a dissensus (a hidden lack of agreement) in the narrow, modern sense of the word.^[3060]

(2) The declarations of the parties related to the fundus Cornelianus; however, the vendor wanted to sell a tract of land which was the fundus Sempronianus, but which he believed to be the fundus Cornelianus. This would be a unilateral mistake on the part of the vendor about the identity of the object of the transaction.

(3) The declarations of the parties related to fundus Sempronianus; however, the purchaser wanted to buy a tract of land which was fundus Cornelianus, but which he believed to be fundus Sempronianus: unilateral mistake regarding the identity of the object of sale, this time on the part of the purchaser.

For the Roman lawyers these distinctions did not matter.

What mattered to Ulpianus was what he described as putare emere and putare vendere: the intentions of the parties. As long as they were not directed at the same thing, a contract could not come into being. This situation is referred to as dissensus. Dissent, in the terminology of Roman law, therefore embraced (unilateral) mistake, in this instance a mistake as to the identity of the thing which was the object of the contract. This type of mistake was material (or operative) in the sense that it excluded consensus.²⁶ It has come to be known as error in corpore.

(d) Error in pretio

Although it features particularly prominently in our sources, error in corpore was not the only material mistake. The identity of the object was but one of the essential elements of a contract of sale. There were other matters on which the parties had to be ad idem. The price was obviously one of them. Hence the statement by Ulpianus: "si in pretio dissentiant, emptio imperfecta est."²⁷ An error in pretio was thus also material. A case relating to locatio conductio deals with this problem: "Si decem tibi locem fundum, tu autem existimes quinque te conducere, nihil agitur."²⁸ This appears to be the rule; no consensus as to the rent has been reached, and thus there is no contract. Interestingly, however, the result is different in the following example:.. sed et si ego minoris me locare sensero, tu pluris te conducere, utique non pluris

Rechtsgeschäft im romischen Recht", in: Festschrift fur Fritz Schulz, vol. I (1951), pp. 236 sqq. Contra (e.g.) Wicacker, Melanges Meylan. pp. 389 sqq.; Wunncr, Contractus, pp. 163 sqq.; Frier, (1983) 100 ZSS 262.

"^s This idea found its expression in the maxim "errantis voluntas nulla est" (e.g. Pomp. D. 39, 3, 20 and supra, p. 588). It does, of course, not mean that a person labouring under a mistake does not have a will at all, but only that his will is not his true will and thus a nullum.

The idea that mistake excludes consensus can be traced back to Julian and appears to have been well established in high and late classical jurisprudence. Cf Arnold Ehrhardt, "Errantis voluntas nulla est", (1938) 58 ZSS 167 sqq.; idem, "Betrachtungen uber die Lehre vom Error", (1952) 69 ZSS 402 sqq.; Wolf, Error, pp. 1 sqq.; Wunner, Contractus. pp. 195 sqq.

-⁷Cf. D. 18, 1, 9 pr.

^3H Pomp. D. 19, 2, 52.

erit conductio, quam quanti ego putavi."^[3061] Here we are dealing with the rather uncommon situation where the lessor is content with much less than the lessee expects him to be: the lessor imagines the rent to be, say, five, whilst the lessee considers himself bound to pay ten. Pomponius does not regard this transaction as entirely invalid. There is a minimum consensus over five, since the lessee will obviously only be too happy to pay five rather than ten. "Minus in maiore inest":^[3062] his willingness to pay the higher sum can be taken to include acceptance of the lesser amount. Only as to the difference (between five and ten) is there a lack of consensus; but such partial lack of consensus does not affect the rest of the transaction.^[3063] From a very formalistic point of view, the same kind of reasoning could, of course, be applied to the other example too, where it had been the lessor who thought that he had contracted for ten, whilst the lessee was under the impression that he had promised only five. It is obvious, however, that here it would be against the interests of the lessor if one were to construe a consensus on the level of five. The fact that the Roman lawyers did not do so demonstrates again the flexible manner in which they handled a rule such as utile per inutile non vitiatur.^[3064]

(e) Error in negotio

Thirdly, there was the situation where the parties did not agree on the nature of their transaction. It is mentioned in D. 18, 1, 9 pr.

("... sive in ipsa emptione dissentient") and is generally referred to as error in negotio. Ulpianus D. 12, 1, 18, 1 provides an example:

"Si ego quasi dcponens tibi dedero, tu quasi mutuam accipias, nee depositum ncc mutuum est: idem est et si tu quasi mutuam pecuniam dedcris, ego quasi commodatum ostendendi gratia accepi.¹'^[3065]

In both these cases money has been handed over, but in neither are the parties ad idem as to the purpose of this act. One of them thinks that it is a deposit, the other takes it to be a loan for consumption; and in the second case the one party regards it as a loan for consumption whilst the other has a loan for use in mind. Neither of these contracts can come into existence under these circumstances. A^ain, incidentally, it is not clear (and therefore does not seem to matter )^[3066] ^{^[3067] whether we are dealing with dissensus in the modern sense of the word or with a case involving error (in negotio).³⁵}

(f) Error in persona

Dissensus or mistake over the identity of the other contracting partner (error in persona) is not specifically referred to in our fragment D. 19, 1, 9 pr., but appears to have prevented the formation of a contract.

"Si et me et Titium mutuam pecuniam rogaveris et ego meum debitorem tibi promittere iusserim, tu stipulates sis, cum putares cum Titii debitorem esse, an mihi obligaris ?"-^v'

The person referred to as "tu" believes that he receives a loan from Titius, while in reality the money is paid out to him by order of "ego". Under these circumstances, "tu" is not under a contractual obligation towards "ego", for "nullum negotium mecum contraxisti". A little gloss, possibly only added at a later stage, specifies the reason: "[credita pecunia] nisi inter consentientes fieri non potest."

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Basic types of error in Roman law

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