Pacta ex continent adiecta
There was, however, one group of cases where this kind of praetorian intervention was not even necessary, for the exceptio pacti (as well as, incidentally, the exceptio doli) was inherent in the bonae fidei indicia.[2617] If, therefore, for example, the actio venditi was brought against a purchaser or the actio locati against a lessee, the defendant did not have to insist on the insertion of the exceptio pacti into the formula if he wanted to bring the release or indulgence agreement to the attention of the judge.
The latter was instructed to assess "quidquid ob earn rem Nm Nm A° A° dare facere oportet ex fide bona", and hence it was his duty to take such circumstances into consideration in any event: "... bonae fidei iudicio exceptiones pacti insunt."[2618] But the oportere ex fide bona enabled the judge to go much further. "[B]ona fides exigit, ut quod convenit fiat":[2619] if the parties had agreed on certain "adminicula [emptionis, locationis, etc.]"[2620] and added a variety of provisions relating to, supporting and detailing the main contractus, what would have been more in tune with the precepts of good faith than to give effect to these agreements?[2621] In the course of time, the term "pactum" came to be used in this context (i.e. in a very broad sense) too,[2622] and the edictal clause of "pacta conventa... servabo" acquired a new dimension. As far as bonae fidei iudicia were concerned, all kinds of agreements had to be taken into account, whether they were favourable to the plaintiff or to the defendant.[2623] It would have been inequitable merely to give effect to pacta which defeated the designs of the specific plaintiff. The indicia bonae fidei provided the procedural framework within which so-called pacta adiecta became (indirectly) enforceable. The plaintiff could still not base an action on a "nudum" pactum, but if the agreement was ancillary to a contract of sale, lease or any other of the recognized contracts bonae fidei, it could determine the scope of application of the actiones empti, venditi, locati, conducti, etc. "[Sjolemus enim dicere", in the words of Ulpian, "pacta conventa [and not only: exceptiones pacti!] inesse bonae fidei indiciis."[2624] [2625] However, a qualification is immediately added:"Sed hoc sic accipiendum est, ut si quidem ex continenti pacta subsecuta sunt, etiam ex parte actoris insint: si ex intervallo, non inerunt, nee valebunt, si agat, ne ex pacto actio nascatur."
A distinction is drawn between pacta ex continenti (entered into immediately, that is, at the time of conclusion of the contract) and pacta ex intervallo (which are added at a later stage). Only the former are part and parcel of the main transaction; subsequent modifications of the contract, on the other hand, retain their status as independent pacta and have to be dealt with separately, not within the ambit of the actio ex contractu. Pacta ex continenti " forma [n]t ipsam actionem",[2626] pacta ex intervallo can be raised only by way of a defence.[2627]
With regard to iudicia stricti iuris, pacta ex continenti adiecta could not, of course, have the same significance. They could provide the basis for an exceptio, but they were not enforceable within the framework of (for example) the condictio. This followed from the strict word formalism of old; the content of a stipulation was determined merely on the basis of what was contained in the formal declarations of the parties.[2628] By the time of late classical law, however, a considerable relaxation had occurred and the emphasis was no longer exclusively placed on the (formal) verba. As far as possible, the actual will of the parties was taken into consideration;[2629] and in the determination of the actual will, informal pacta could be of considerable importance.
"[PJacta in continenti facta stipulationi inesse creduntur", we even read in Paul. D. 12, 1, 40,[2630] a sweeping generalization which does, however, contain at least an element of truth. For, through the process of interpretation, informal pacta could indeed have some bearing on the content of the stipulation and, as a result, influence the range of the condictio.[2631]The special position of pacta in continenti adiecta, particularly as far as iudicia bonae fidei were concerned, was still compatible with the general rule of "ex nudo pacto non oritur actio". Yet there were also instances, where the emperors — or even the praetor—had been prepared to grant an action on the basis of an informal agreement that could not be classified as a consensual contract and that was also not ancillary to one. One traditionally refers to pacta vestita (as opposed to pacta nuda) and distinguishes between pacta praetoria (recognized by the praetor) and pacta legitima (upheld by the emperors).
II.
More on the topic Pacta ex continent adiecta:
- 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.
- Pacta vestita and pacta nuda
- Pacta
- Pacta sunt servanda and classical contract doctrine
- PACTA PRAETORIA
- PACTA IN GENERAL
- 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.
- Informal release
- The boni mores and the ins commune
- Trust Purposes
- Roman Law, Canon Law, and the Trust
- Militarism as Myth
- Significance of Roman law
- Permutatio and the rise of actiones praescriptis verbis