Formation of a Valid Contract

4.3.2.1 General Requirements

Certain general requirements had to be met if the parties wished to enter into a valid contract.

First, the parties had to be capable of entering into a legally binding agreement.

The following categories of persons lacked contractual capacity: (a) slaves (although under certain circumstances the praetor could intervene and render a master liable for contracts entered into on his behalf by a slave); (b) persons without the power of understanding (intellectus), i.e. children below the age of 7 years (infantes)^{^[588]} and insane persons; (c) persons under the power of another (sons under fourteen in potestas, daughters in potestas, wives in manu) where the contract was bilateral^{^[589]}; (d) persons sui iuris under guardianship where the contract was bilateral and the guardian’s approval (auctoritas tutoris) was absent; and (e) persons sui iuris under curatorship where the contract was bilateral and the curator’s consent was absent.

Furthermore, the agreement had to relate to a performance that was definable or determinable^{^[590]} and not in conflict with a legal norm or contrary to good morals (contra bonos mores).^{^[591]} In accordance with the rules of procedure laid down by the praetor, it was important that the performance was appraisable in monetary terms.^{^[592]}

Moreover, as a contract created a strictly personal obligation it could only affect the parties who had concluded it and no one else. Thus, a contractual agreement for a performance that was exclusively in the interests of a third party was in principle void.^{^[593]}

4.3.2.2 Possibility of Performance

Of special importance was the requirement that the performance was physically and legally possible at the time of conclusion of the contract.

If the performance was impossible no obligation was created, according to the principle impossibilium nulla obligatio est (‘there is no obligation in respect of impossible things'). Performance was physically impossible, for example, when the object of the performance no longer existed at the time of the conclusion of the contract. An example of legal impossibility was the case where the object of the performance fell outside the ambit of commercial transactions (extra commercium).^{^[594]} The test for impossibility was purely objective. In other words, where the performance would have been feasible for another person, the fact that, from a subjective viewpoint, it was impossible (or extremely difficult) for the debtor to carry it out was deemed irrelevant.^{^[595]} A distinction was drawn between the case where performance was impossible at the time of conclusion of the contract, and the case where performance was rendered impossible by certain events, such as a superior force (vis maior) or an accident (casus fortuitus), after the contract had been concluded. The Roman law principle impossibilium nulla obligatio est was applicable in the latter case as well. Thus, the debtor was released from his obligation to perform in the event the object of the performance perished or fell outside the sphere of commercial transactions or where the performance as such became impossible on some other ground subsequent to the conclusion of the contract and this occurred without any fault (dolus or culpa) on the part of the debtor, or before the debtor was in default (in mora).

In certain cases impossibility of performance did not release the debtor from his obligation to perform. In such cases the creditor could still institute the personal action derived from the contract to claim either the monetary value of the impossible performance or damages depending on the nature of the contract. The distinction between negotia stricti iuris and negotia bonae fidae mentioned previously played an important part in this regard.

With respect to the negotia stricti iuris (such as stipulatio), the principle impossibilium nulla obligatio est was applied without qualifications, i.e.

the debtor was discharged from liability. As this could lead to unjust consequences for the creditor, in pre-classical law the custom developed of entering a clause in the contract whereby the debtor undertook that it would not be on his account that performance became impossible.^{^[596]} The relevant principle was expressed in the rule factum debitoris perpetuai obligationem: a positive act on the part of the debtor perpetuates the obligation. Thus, if the debtor by a positive and intentional act made performance impossible, he remained bound and the creditor could claim the monetary value of the impossible performance.^{^[597]} If performance became impossible after the debtor fell into default (in mora), the debtor remained liable in accordance with the rule mora debitoris perpetuat obligationem: default on the part of the debtor perpetuates the obligation.

With regard to the negotia bonae fidei (such as sale), the principle impossibilium nulla obligatio est applied but if performance became impossible as a result of bad faith (mala fides) on the part of the debtor, the latter remained liable.

4.3.3

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

Formation of a Valid Contract

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