From twofold to fourfold subdivision
The distinction between contractual and delictual obligations does, of course, not represent an exhaustive basis for the systematic analysis (a divisio in the technical sense) of the law of obligations.
That would not have been disputed even by Gaius. In actual fact, the "summa divisio" in III, 88 of his Institutes seems to have been established mainly for didactical purposes, in order to provide the law student with a broad outline of the material covered; systematic completeness does not appear to have been intended.[73] Only a few lines later Gaius discusses a case of unjustified enrichment and makes it quite plain that the obligation to render restitution cannot be regarded as a contractual one.[74] Of course, it is not of a delictual nature either. In his amended and revised version of the Institutes, probably published posthumously under the somewhat peculiar title of Res cottidianae sive aurea, Gaius added a third category in order to accommodate these and other cases: '"Obligationes aut ex contractu nascuntur aut ex maleficio aut proprio quodam iure ex variis causarum figuris."[75] But this lumping together of everything which did not really fit under either delict or contract into a hotchpotch of "various causes" could not, of course, appeal to the more systematically oriented minds of the East-Roman school jurists. Thus, by the time the official Justinianic textbook was compiled, this residual category had been subdivided on the model of the contract/ delict dichotomy, and as a result a fourfold scheme had been arrived at:..divisio [obligationum] in quattuor species diducitur: aut enim ex contractu sunt aut quasi ex contractu aut ex maleficio aut quasi ex maleficio.1,77
As far as systematic exposition and classification of topics are concerned, Justinian took great delight in the number four: not only does he present four sources of obligations, he also gives a fourfold subdivision of contractual obligations; then, there are four kinds of contracts re, four cases of contracts verbis and four instances of contracts consensu; furthermore, four delicts and four quasi-delicts are mentioned.[76] [77] [78] [79] This method of arranging and systematizing the law was neither accidental[80] nor merely adopted for the sake of {a somewhat artificial) symmetry of exposition: like most people in the ancient world, he was influenced by the symbolism of numbers. The number four has always had a special significance, usually relating—in contrast to the sacred number three[81]—to the more external or secular structure of the world.[82] (Of course, the addition of four and three equals the mystical number seven,[83] multiplication of them the holy number twelve.)[84] 3.
More on the topic From twofold to fourfold subdivision:
- Innominate contracts
- Gaius: personae, res, actiones
- Actio furti manifest!
- Policies of the Roman Republic
- 1. The demise of the actio furti
- Curbs on rapacity: jurisdiction
- In the chapters that follow, first the law of contract, then unjustified enrichment, and finally the law of delict will be dealt with.
- Conclusion
- Nuda pactio obligationem non parit
- Types of contracts
- The relationship between contract of sale and transfer of ownership
- 1. The possible effects of illegality
- Additional statutory relief: repetundae and maiestas
- The reception of Justinian's scheme
- The distinctions of the ins commune
- Myths fascinate—rightly so. This is what they are supposed to do.
- INTRODUCTION.