Defects in Agreement

As previously noted, the basis of the Roman contract was the consensus or agreement of the parties at the time the contract was made.

Where such agreement was lacking or deemed defective, no valid contract could be concluded.^{^[598]} As Roman law evolved, it was recognized as a general principle that attention should be paid to the actual intention or will of the parties rather than to the impression or external appearance created by their words.^{^[599]} Thus, the strictly formal acts of the old ius civile fell into abeyance or were adapted, while novel juristic acts derived from the ius gentium were assimilated into Roman law. These acts were largely informal and the actual intention of the parties was the decisive factor.

The principal ways in which the requisite consensus might be negated were mistake (error), fraud (dolus) and duress (metus).

4.3.3.1 Error

Error occurred when one or both parties laboured under a bona fide mistake, i.e. a belief contrary to the truth, at the time of the conclusion of the contract.^{^[600]} Mistake could occur in various forms with different consequences as regards the validity of the relevant agreement. An error in negotio, a mistake as to the nature of the legal transaction entered into,^{^[601]} and an error in corpore, a mistake as to the identity of the object (corpus) of the contract,^{^{color=black face="Times New Roman">[602]}} both excluded consensus as required for the conclusion of a valid contract. On the other hand, an error in nomine, a mistake regarding the name or description of the object of the contract, did not affect the validity of the contract insofar as both parties had the same object in mind.^{^[603]}Similarly, a unilateral mistake regarding the motivation of a particular party in respect of the conclusion of the contract was deemed irrelevant.^{^[604]} A further case of mistake that could possibly lead to the nullity of a contract was the so-called error in persona, a mistake regarding the identity of the other contracting party.

This form of mistake, although hardly mentioned in the sources, appears to have rendered the contract void if the identity of the other party was considered to be an essential element of the transaction at issue. Another controversial type of mistake was the so- called error in substantia (also known as error in materia or in qualitate), a mistake as to a material characteristic of the object of the contract. In this case there was agreement about the object of the contract but one or both parties were mistaken about an essential quality of the object—for example, in a contract of sale the purchaser believed that the item he was buying was composed of gold, but it turned out to be of copper. In post-classical law a mistake of this kind would nullify the contract only if the object at issue differed so widely from what it was supposed to be that it fell into a distinct commercial category.^{^[605]} Finally, reference may be made to error in pretio or mistake as to the price (pretium) of the object of the contract, and error in quantitate or mistake regarding the quantity of the contractual object. Such mistakes were only partially operative: neither party could enforce the relevant contract at his own figure; but each could, if he so wished, enforce it at that figure of the other. For instance, if in a contract of sale the seller intended a price of 20 and the purchaser a price of 10, the seller could enforce the contract if he was prepared to accept 10, and the buyer if he was prepared to pay 20.

4.3.3.2 Dolus

Fraud (dolus), defined as any craft, deceit, or contrivance employed to circumvent, deceive or ensnare another person,^{^[606]} could give rise to a delict but it could also negate the consent of parties to a contract. In addressing the question of whether a defrauded person could avoid a contractual obligation, one must again pay attention to the distinction between negotia stricti iuris and negotia bonae fidei.

Where dolus transpired in the context of a contract stricti iuris, initially the victim of the fraud had no remedy against the defrauder and the contract remained perfectly valid. However, towards the end of the republican age the praetor instigated a change by granting the exceptio doli to a party who was induced to conclude such a contract by means of fraud. Although the contract was not deemed ipso iure void, the defrauded person could raise this exceptio as a defence to bar any action on the contract by the defrauder.^{^[607]} There was also an actio doli, which the victim of fraud could use to claim compensation for any loss he sustained.^{^[608]}

If the contract entered into as a result of fraud was based on bona fides, the victim was fully protected and there was no need for special remedies to be introduced and pleaded since good faith did not require performance of an obligation arising from a contract concluded by means of fraud.^{^[609]} Therefore, the insertion of an exceptio doli into the procedural formula that contained the clause ‘ex fide bona' was superfluous.

4.3.3.3 Metus

Duress (metus) consisted in the use of force or the threat of force on the part of one person against another as a result of which the person under duress was compelled to enter into a legal act. According to the old ius civile, metus had no effect on such legal act and thus a contract stricti iuris entered into under duress remained valid in all respects. In the later republican era, the praetor intervened to improve this unsatisfactory situation and recognized metus as an independent delict. At the same time, a number of remedies were made available to persons who had been subjected to duress.^{^[610]} Thus, a person who was forced into the conclusion of a contract by means of duress could raise the exceptio metus causa as a defence against an action by the other party to enforce the contract.^{^[611]}

If the contract entered into as a result of duress was based on bona fides, the exceptio metus causa was superfluous. As good faith did not require performance of an obligation arising from a contract concluded under duress, the judge who had to decide the relevant dispute could declare such contract invalid, regardless of whether or not the exceptio metus had been raised.^{^[612]}

4.3.4

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

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