Breach of contract under the ins commune

By the time of Justinian the procedural basis for these kinds of distinctions had fallen away; the formulary system had long since been abandoned and in its place the post-classical cognitio procedure reigned supreme.

All claims were now adjudged from the point of view of aequitas,^[4151] and thus, irrespective of whether a specific object or what the classical lawyers had termed an "incertum" was owed, irrespective also of the way in which the debtor had failed to comply with his contractual duties, he could now ultimately be condemned to id quod interest.^[4152] It was therefore essentially the regime applicable to bonae fidei iudicia that survived. The perpetuatio obligationis had lost its function, but was, nevertheless, still incorporated into the Corpus Juris Civilis^[4153] and it has, not surprisingly, puzzled subsequent generations of lawyers.^[4154] By and large, however, Justinian's codification had settled the problem of liability for breach of contract and from the days of the glossators down to the first half of the 19th century the basic principles remained unchallenged. More particularly, apart from mora debitoris, no specific types of breach of contract were singled out and dealt with separately. The debtor was liable for id quod interest (or, in the terminology coined by the glossators, the "interesse"),^[4155] and supervening impossibility due to the destruction of the object of performance no longer automatically terminated his liability. Non­performance on account of supervening impossibility therefore created no further problems than any other kind of breach of contract. What mattered was simply whether the debtor had complied with his contractual obligations and, if not, whether his failure to perform (properly) was attributable to his fault;^[4156] hence the emphasis throughout the various periods of the ius commune on the subjective requirements for liability for breach of contract and the attempts to analyse, refine and systematize the various degrees of culpa (in the broad sense of the word).^[4157] For a typical formulation of the prevailing doctrine, we may refer to the Codex Maximilianeus Bavaricus Civilis (1756), where it is crisply stated that "dolum, culpam vel casum in conventione praestfarej" means as much as to be liable for the loss arising through the contract due to the malice or negligence of one of the contracting parties or due to some unforeseen accident.^[4158] Specific objective requirements for liability are not mentioned, and not even mora debitoris is specifically singled out.

Following the pattern of the ius commune, too, is the French code civil. Its art. 1147 refers to "inexecution", a broad concept which covers all forms of breach of contract (that is, those cases where one of the parties "tie satisjera point a son engagement").^[4159] The debtor is liable wherever such non­performance is not due to vis maior or casus fortuitus.^[4160]

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More on the topic Breach of contract under the ins commune:

1. The position under the ins commune
2. The boni mores and the ins commune
3. The distinctions of the ins commune
4. The notion of impossibility under the ins commune
5. Actio empti and aedilitian remedies in the ins commune
6. Breach of contract in German law
7. Breach of contract in English law
8. Breach of Contract
9. 'Positive' Breach of Contract[252]
10. 1. Breach of contract in Roman law
11. Breach of Contract
12. I. BREACH OF CONTRACT IN GENERAL
13. RESCISSION AS A REMEDY FOR BREACH OF CONTRACT
14. IMPOSSIBILITY OF PERFORMANCE AND BREACH OF CONTRACT
15. QUOD INTEREST, DAMAGES AND BREACH OF CONTRACT
16. THE ROMAN CONTRACT OF STIPULATION UNDER THE IUS COMMUNE
17. 1. Mora creditoris, mora debitoris and breach of contract
18. ‘Quasi-contract’ is an unsatisfactory term applied to certain specific obligations which did not arise from contract or delict but were legally enforceable.
19. From contract verbis to contract litteris
20. The subject called �obligations' is mostly about contract and delict. There are some other heads to be considered, but the right impression is given if we say that contract and delict between them occupy about ninety per cent of the ground.