1. Contract and pacta in the Corpus Juris Civilis
To sum up: What the glossators found when they started to work their way through the Digest was not a law of contract(s) based on any neat and rational system. On the one hand, there was the rule of "nuda pactio obligationem non park".
But, on the other hand, there was a whole variety of agreements which had in one way or another become legally recognized; having grown up historically, they now formed a somewhat haphazard lot. First, there were the contracts, i.e. those obligatory transactions which had a proper name ("... transeunt in proprium nomen...").187 Then there were the contractus innominati (or "anonyma synallagmata"); but some of them had actually acquired individual names (permutatio, aestimatum, transactio, precarium). Furthermore, consensual agreements were enforceable if they had been attached to one of the recognized contracts and had been concluded at one and the same time as the main contract (pacta in continent! adiecta). Then, again, there were two groups of agreements which were not classified as contracts but which were nevertheless enforceable: constitutum, receptum arbitri and receptum nautarum, cauponum, stabulariorum on the one hand, and those of which Paulus said: "...1S4 However, they were not merely an extension or generalization of the contracts re. for the nodon of a quid pro quo was absent in the latter. On the relationship between contracts re and innominate real contracts, cf., most recently, MacCormack, (1985) 51 SDH1131 sqq.
18j The term "avva. Wa-Afi.a." appears in Lab./Ulp. D. 50, 16, 19 and in Aristo/Ulp. D. 2, 14, 7, 2, but was not yet used as the terminus technicus that we know in modem law (hence the inverted commas); for details cf. Bcnohr, Synallagma, passim; further: Constantm Despotopoulos, "La notion de synallagma chez Aristote", (1968) 13 Archives de philosophic du droit 115 sqq.; Schiavone, op. cit., note 182, pp. 37 sqq,.; Werner Macheiner, "Zu den Anfängen des Kontraktssystems", in: Festyabe fiir Arnold Herdtitczka (1972), pp. 172 sqq.; Santoro, (1983) 37 Annali Palermo 7 sqq., 35 sqq. (on D. 50, 16, 19) and 207 sqq., 211 sqq. (on D. 2, 14, 7, 2); Arnaldo Biscardi, "Quod Gracci synallagma vocant", (1983) 29 Labeo 127 sqq.; MacCormack, (1985) 51 SDHI138 sqq.
18(1 Cf. e.g. Paul. D. 19, 5, 5, 1.
187 Uip. D. 2, 14, 7, 1.
ex pacto actio nascitur.. quotiens lege vel senatus consulto adiuvatur"[2771] on the other: donatio, compromissum, dotis promissio and some others.[2772] Other informal arrangements which did not fall into these categories could be raised by way of defence; apart from that they could at least be regarded as obligationes naturales.
2.
More on the topic 1. Contract and pacta in the Corpus Juris Civilis:
- The Corpus Iuris Civilis
- Post-classical developments, Corpus Juris and ius commune
- The most important legal undertaking of Antiquity was the compilation of what was later called Corpus luris Civilis promulgated by Emperor Justinian.
- Pacta sunt servanda and classical contract doctrine
- Legal scholars use the term ‘civil law systems’ to describe the legal systems of all those nations predominantly within the historical tradition derived from Roman law as transmitted to Continental Europe through the Corpus Iuris Civilis of Emperor Justinian.[834]
- Pacta vestita and pacta nuda
- Pacta
- ‘Quasi-contract’ is an unsatisfactory term applied to certain specific obligations which did not arise from contract or delict but were legally enforceable.
- Liberum corpus nullam recipit aestimationem
- From contract verbis to contract litteris
- 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.
- Corpus, dignitas and fama
- 5 Justinian and the Corpus Iuris
- 12 JUSTINIAN AND THE CORPUS IURIS
- There are different ways or organising a law of contract. That is as much as to say that there are different ways of responding to the central tasks which contract has to perform.
- PACTA PRAETORIA
- PACTA IN GENERAL
- Pacta ex continent adiecta
- PACTA LEGITIMA: COMPROMISSUM AS EXAMPLE