Innominate contracts

This group of contracts consisted of certain agreements for mutual services, enforce­able because one party had performed his part of the bargain, i.e. there was part performance.

9.7.1 Development

The evolution of these contracts was not uniform. Some dated from Rome's earli­est days, others were of comparatively late development. However, it was not until the late classical period, or even thereafter, that these agreements were thought of as comprising a separate category of contracts. Their development owes much to the fact that the number of contracts in Roman law was quite limited throughout much of Rome's legal history. The need was eventually felt to give certain agree­ments contractual force, even though they did not constitute any of the recognized contracts, as in the case of barter (pemiutatio), for example. Previously, the remedy of the plaintiff had been to bring a condictio to recover anything that had passed under such agreements to the defaulting party, or to bring an action for fraud.

It appears then that during the Empire, a general principle was gradually estab­lished that agreements for mutual services would be given contractual force provid­ing there had been performance by one side. The Digest gives numerous illustrations of the circumstances in which the actio praescriptis verbis would be appropriate,: most of the cases being analogous to standard contracts such as sale, hire, or man­date. For example:

Gaius, Provincial Edict, book 10:1 give you clothes for cleaning or mending. If you undertake this work for free, the obligation is in mandate; but if a fee was paid or agreed upon, then the transaction is lease and hire. But if you do not undertake this work for free and no fee was given or agreed upon, but the transaction is instead undertaken with the intention that whatever amount we would have agreed on be paid afterward as a fee, the accepted view is that an actio in factum, that is, praescriptis verbis, be accorded on the theory that a new kind of transaction is involved. (D.19.5.22.)

(Actio in factum: 'action on the facts'.)

Within the category of innominate contracts, four particularly stand out because of their practical importance: transactio, aestimatum, permutatio, and ptecarium.

9.7.2 Transactio

(D.2.15., C.2.4.)

Transactio was the compromise (informal settlement) of a legal action, i.e.

Ulpian, Disputations, book 7: A transactio after judgment is valid either if there has been an appeal or if an appeal is possible. (D.2.15.7pr.)

Even in the absence of an appeal, a post-judgment compromise could be made, e.g. if doubt existed about the validity of the judgment. The important requirement was that there should be some element of doubt or uncertainty about the final outcome when the compromise was made:

Ulpian, Edict, book 50: A person who makes a compromise does so on the basis that a matter is doubtful and the outcome of a lawsuit uncertain or not yet determined. (D.2.15.1.)

9.7.3 Aestimatum

(D.19.3.)

This was a type of conditional sale in which the owner of a thing entrusted it to a : transferee on a sale-or-return basis. The parties would specify a period within which the transferee was to return the property or an agreed price for it. The transferee : usually intended to sell the property to a third party at a profit, the owner retain- : ing ownership until such time as the possibility of return had passed, i.e. when the _: property was sold to a third party, or when the time limit had expired. Although the Transferee did not obtain ownership through the transfer, he nevertheless passed ownership of the property when he sold it—an exception to the principle nemo dat quod non habet (see 7.2.1).

j. On whom was the risk of damage or loss, while the property was in the trans- feree's hands? There is some inconsistency in the texts on this important issue, but _: the most plausible view is that, in the absence of agreement, risk lay with the trans­feror unless the transferee had initiated the transaction. Where the risk lay with the Transferor, it was in respect of accidental loss, i.e. the transferee would be liable for joss or damage caused through his own fault.

It seems that aestimatum was an arrangement that did not fail dearly within the ambit of any one of the recognized contracts. However, it contained elements of several, which most probably explains its recognition as an enforceable contract, see Zimmermann, Obligations, 535 ff.

9.7.4 Permutatio

(D.19.4., C.4.64.)

This was the contract of exchange or barter. It will be remembered that the Proculian view prevailed that an exchange of goods could not amount to a sale (see 9.3.1.3). Justinian followed that view, regarding barter as an innominate contract. However, many of the rules of sale applied to barter, e.g. the rules on compensation for defective goods:

Paul, Plaudits, book 5: Aristo says that since barter is akin to purchase, there should be a war­ranty that a slave given for this reason is healthy, free of thefts and delicts, and not a runaway. (D.19.4,2.)

The major difference between sale and barter, apart from the necessity for money to constitute at least part of the price in sale, was that there was a duty to pass owner­ship in barter. It followed that a transferee could sue for any defect in title before he was evicted by the rightful owner, unlike the case with sale. Another difference was that the obligations in barter arose only when one party had performed, and not on mere agreement (as was the case in sale).

9.7.5 Precarium

(D.43.26., C.8.9.)

Ulpian, Institutes, book l-.vPrecarium is what is conceded to one who asks for it for his use for as long as the person who made the concession suffers it. [2];...And it differs from a gift in that someone who makes a gift does it on terms of not getting it back, whereas someone who makes a concession by precarium gives it expecting to get it back when he chooses to dissolve the precarium. (D.43.26.tpr., 2.)

This contract consisted of the gratuitous grant of the enjoyment of land or movables:) Precarium was commonly used in relation to land and was in this respect similar to' the tenancy-at-will in English law. It differed from commodatum in that the grant was not of fixed duration, the grantor being able to terminate the arrangement at any time; and that in precarium the grantee had general enjoyment of the property, and a right to its fruits—he was not restricted to any particular use. Moreover, the grantee normally received possession, unlike the case in commodatum, and was liable for

Obligations: Common Principles and Obligations Arising from Contracts 313 dolus (but not negligence) in his occupancy of the property. The grantor's remedy for recovery of the property was the interdict de precarlo; but Justinian allowed him the actio praesaiptis verbis, convertingprecarium into an innominate contract. Previously, precarium had not exhibited the features normally associated with such contracts. (Note the requirements for the possessory interdicts: nec vi, nec clam, nec precario.)

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