1. Breach of contract in Roman law
What about the other forms of breach of contract? We have seen that, according to the formulary procedure of classical law, the answer depended on the type of action available to the creditor.
The device of a perpetuatio obligationis was necessary in order to establish the liability, under the condictio, of a promisor who was responsible for the fact that the object of performance could no longer be transferred. But for the perpetuatio obligationis, the debtor of a certum dare obligation would have been released whenever performance became impossible. The position was different in the case of obligations for an incertum. Here the judge had to determine "quidquid dare facere oportet (ex fide bona)", which means that the debtor could be condemned in id quod interest irrespective of whether the object of performance still existed, provided only that the failure to perform (properly) was attributable to him according to whatever standard of liability appeared reasonable ("oportet ex fide bona") under the circumstances. In other words: a promisor automatically became free if the object of the stipulation was destroyed; as a result of the perpetuatio obligationis, however, he was liable for the value of that object, if he had culpably destroyed it. The vendor under a contract of emptio venditio, on the other hand, was liable for id quod interest, if he had made transfer of the object of the sale impossible or if he was guilty of any other form of breach of contract. Where he was not to blame for not performing (properly), however, it could hardly be said that he "ought to do or to give ex bona fide", and the actio empti was therefore unsuccessful.17" If the liability of the stipulator (for the value of the object) was (dogmatically) a somewhat artificial exception to the rule, the liability of the vendor flowed naturally from the basic principles governing bonae fidei iudicia.2.
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