Pacta
A simple agreement that could not be classified under any of the existing categories of contract was termed a pact (pactum) or bare pact (nudum pactum).[887] Initially, such an informal agreement was not actionable but could in certain cases be pleaded as a defence.[888] In the course of time, however, certain pacts were made enforceable, i.e.
they gave rise to an action and therefore to an obligation, and so became contracts in effect though not in name. In later legal dogma these pacts are referred to as pacta vestita or ‘clothed pacts’ (in contradistinction with the bare pacts) and are classified into three categories: pacta adiecta; pacta praetoria; and pacta legitima.4.9.2.1 Pacta Adiecta
Pacta adiecta were agreements concluded in connection with one of the recognized contracts and intended to modify the normal rights and duties arising from it.[889] [890] Such pacta could be made at the time of the principal contract (pacta in continenti) or subsequent to it (pacta ex intervallo)?70 In some cases the relevant agreement was aimed at diminishing the liability of the debtor (pacta ad minuendam obligationem), e.g. by granting deferment of payment. If the creditor instituted a claim in conflict with this agreement, the debtor could rely on the agreement as a defence against the creditor’s action (such a defence was known as exceptio pacti conventi).[891] In other cases the purpose of the agreement was to increase the liability of the debtor (pacta ad augendam obligationem), e.g. by providing that the debtor should pay interest on the capital amount for a certain period of time.
4.9.2.2 Pacta Praetoria
As the name suggests, the pacta praetoria[892] were agreements recognized as binding by the praetor and made enforceable by means of praetorian actions. The principal among these pacts embraced the following: the constitutum debiti, an agreement whereby one of two parties undertook to discharge a current debt, whether his own or that of another person, on a specific date[893]; the receptum arbitri, an agreement whereby a person undertook to act as arbitrator (arbiter) in a dispute submitted to him with the consent of the parties concerned[894]; the receptum argentarii, an agreement between a banker (argentarius) and a client whereby the former undertook to pay the latter's debt to his creditor[895]; and the receptum nautarum, cauponum, stabulariorum, the undertaking of masters of ships, innkeepers and stable keepers to be answerable for the safety of goods entrusted to their charge.[896]
4.9.2.3 Pacta Legitima
Pacta legitima were agreements recognized and made enforceable by imperial constitutions during the post-classical age.
Like the pacta praetoria mentioned above, these agreements were not classified as contracts yet they practically had the same effect as the contractus consensu. The most important among these agreements embraced the pactum dotis, an agreement to supply a dowry; the pactum donationis, an agreement to make a donation; and the compromissum, an agreement between two parties involved in a legal dispute to refer the matter to arbitration (instead of taking it to court in the usual manner) and abide by the arbiter's decision.[897]4.9.3
More on the topic Pacta:
- Pacta vestita and pacta nuda
- Pacta sunt servanda and classical contract doctrine
- PACTA PRAETORIA
- PACTA IN GENERAL
- Pacta ex continent adiecta
- PACTA SUNT SERVANDA
- PACTA LEGITIMA: COMPROMISSUM AS EXAMPLE
- Pacta and Innominate Real Contracts
- 1. Contract and pacta in the Corpus Juris Civilis
- There were two types of pacta praetoria: the constitutum debiti and the receptum.
- Most of our texts by far, concerning resolutive conditions, deal with three specific clauses, frequently appended, by way of pacta ex continent! adiecta,129 to contracts of sale.
- Informal release
- The boni mores and the ins commune
- Permutatio and the rise of actiones praescriptis verbis