Contractual Agreements in Favour of a Third Party

Since Roman law did not in principle recognize representation in legal acts, a contractual agreement for a performance in favour of a third party or an agreement imposing a duty on a third party was deemed invalid.

As already noted, a contract was considered a personal affair that created an obligation only between the immediately contracting parties.^{^[658]}

This principle was strictly adhered to with respect to contractual agreements by which performance was to be undertaken by a third party.^{^[659]} On the other hand, with respect to agreements entered into in favour of a third party certain exceptions to this general principle were gradually allowed for reasons of necessity or convenience. Thus, a master or paterfamilias acquired the benefit of a contract entered into by a slave or filiusfamilias respectively, whether the latter contracted in their own name or in his. Where a contract stipulated that performance should be undertaken in favour of both a contracting party and a third person, it was held that only the contracting party acquired a personal right, namely a right to half the value of the benefit stipulated. On the other hand, where performance was stipulated in favour of a contracting party or a third person, the debtor had the option to perform in favour of either the other contracting party or the third person (although only the former acquired a personal right for the full performance). In such a case it was asserted that the third party was merely added for the purposes of performance (solutionis causa adiectus)^{^[660]}

Justinian declared that a feasible method for making a performance stipulated in favour of a third party enforceable was to render it subject to a penalty clause, for example: “Do you promise to perform in favour of X? If you fail to do so, do you promise to pay me a penalty of such and such an amount?”. In other words, this case meant that one stipulated a penalty payable to oneself while performance in favour of a third person was entered as a condition in the contract. Although the third person did not acquire a legal right, the pressure of the penalty ensured performance to the third person.^{^[661]}

Furthermore, under Justinian’s law it was possible to validly stipulate in favour of an heir after the death of the creditor.^{^[662]}

4.3.8

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Contractual Agreements in Favour of a Third Party

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