Contractus Innominati

As already observed, Roman law recognized only a limited number of contracts. However, there were cases in which there appeared to be a contract but the relevant transaction fell outside the recognized categories of contracts.

The term ‘unnamed contracts’ (contractus innominati) was later introduced by jurists to describe enforceable agreements for reciprocal performances which, unlike the recognized types of contract, did not have a name of their own. These agreements resembled the contractus re because, as in the case of the real contracts, it was the fact that something had been done on one side that gave rise to the liability on the other. This ‘doing’ in the case of the normal contractus re involved the handing over of a thing (res) that had to be returned in kind or in specie, whilst in the contrasting case of the contractus innominati one party had performed according to the terms of a preceding agreement.

According to the nature of the mutual performances, four different categories of unnamed contracts were distinguished: do ut des (‘I give, in order that you should give’); do ut facias (‘I give, in order that you should do’); facio ut facias (‘I do, in order that you should do’); and facio ut des (‘I do, in order that you should give’).^{^[882]}The most common examples of unnamed contracts encompassed exchange or barter (permutatio) whereby the parties agreed that each would transfer something to the other in ownership (e.g. an ox for a horse)^{^[883]}; the agreement of hawking (aestimatum), whereby the owner of goods handed them over to another person on the understanding that the latter would, within a prescribed period of time, either return the goods or pay the sum agreed upon to the former, while retaining any profit he may have obtained from selling them^{^[884]}; and the precarium, a gratuitous grant of the enjoyment of a thing revocable at will.^{^[885]}

Originally, the contractus innominati were regarded as informal, legally unenforceable agreements (nuda pacta) from which no obligations arose. In later times the principle prevailed that if one of the parties had already performed his side of the agreement and the other party did not reciprocate, the former party could recover his performance by means of the condictio causa data causa non secuta or, in certain cases, the actio doli.

However, he had no legal action by way of which he could compel the other party to render performance. To address the potential injustice that might arise from this event, the praetor granted in certain cases an actio in factum whereby the party who had already performed could force his opposite number to carry out his part of the agreement. By the time of Justinian’s reign, this praetorian arrangement was broadened in scope so that the actio praescriptis verbis became available in all cases involving a bilateral transaction for reciprocal performances that did not conform to the typical and recognized categories of contracts. This general bonae fidei action could be adapted to different legal situations in which a party who had honoured his undertaking claimed performance of the reciprocal duty by the other party.^{^[886]}

4.9.2

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

Contractus Innominati

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