Pacts

(Mainly D.2.14., C.2.3.)

There were some agreements which fell outside the scope of the standard and the innominate contracts, but which were nevertheless given a degree of legal recogni­tion.

Ulpian, Edict, book 4:... a naked agreement gives rise not to an obligation but to a defence. (D.2.14.7.4.)

Already in the Twelve Tables we find the rule that an agreement not to sue for personal injury was effective to bar proceedings. The praetor extended the rule significantly—a pact not to sue became a defence to any action. Eventually, certain pacts known as pacta vestita ('clothed'), came to be regarded as providing a ground of action, i.e. they became enforceable by plaintiffs. Three categories of such pacts emerged—subsidiary, praetorian, and statutory.

9.8.1 Subsidiary pacts

These were subsidiary agreements or terms that were added to the main contract, e.g. a clause giving the seller the right of first refusal if the buyer should wish to resell (see 9.3.1.8). But a distinction was drawn between pacts that were made con­temporaneously with the main contract and those made subsequently:

Ulpian, Edict, book 4: for we generally say that agreements by way of pact are incorporated in good faith actions. But this is understood to mean that only if the pacts have followed imme­diately upon [the main contract] are they incorporated in the plaintiff's action; if concluded after an interval, they are not incorporated, nor will they avail the plaintiff, should he sue, since an action cannot arise from a pact,... (D.2.14.7.5.)

Pacts made after an interval could not 'avail the plaintiff', but they were not with­out force—they could be used as a defence.

Ulpian, Edict, book 4:... by a pact, one can withdraw in part from a sale, the effect being as though the sale as to part has been made afresh, (D.2.14.7.6.)

9.8.2 Praetorian pacts

These were independent informal agreements (not attached to any contract) that were fully enforceable through an actio in factum granted by praetorian edict. An actio in factum was an action in which the plaintiff did not allege an ius civile right but

a set of facts which he hoped that the praetor would regard as justifying a remedy. There were two important examples of praetorian pacts—constitutum and receptum.

9.8.2.1 Constitutum debit!

This was an informal undertaking to pay a debt or to discharge an existing liability at an agreed time or on an agreed date. The enforcement of this type of informal arrangement was justified as follows:

Ulpian, Edict, book 27: With this edict, the praetor promotes natural equity in that he protects a constitutum made by agreement on the ground that it is a serious matter to go back on one's word. (D.13.5.1pr.)

Constitutum debit! was the reinforcement of a debt; but it was not novation—the original debt remained. If the debtor paid, the constitutum would normally be dis­charged along with the principal debt. An undertaking to pay or to do something different from the original debt or obligation was valid if accepted by the creditor. Constitutum was sometimes used as a form of surety agreement, the promisor agree­ing to pay someone else's debt. Cervidius Scaevola writes:

Scaevola, Replies, book 1: A man wrote on these lines to a creditor: ‘Sir, you may look to me, interest apart, for the ten lent from your cashbox to Lucius Titius'. My advice was that on the facts as given he had incurred liability to the action on a money constitutum. (D. 13.5.26.)

The use of constitutum as a form of surety declined in the late Empire because of the popularity of fldeiussio (see 9.4.3.5) with which Justinian largely assimilated it.

9.8.2.2 Receptum

This was the name given to a miscellaneous category of informal agreements enforced by the praetors where one party assumed a guarantee for a specific effect or result. Receptum arbitri ('the undertaking of the arbitrator’) was important enough to warrant a title in the Digest. It was an informal agreement to act as an arbitrator in a legal dispute. Once the agreement was made, the praetor could force the arbitrator to act unless there was a valid excuse:

Ulpian, Edict, book 13: Moreover, although the praetor states without reservation in the edict that he will compel an arbiterto make his award, yet he ought at times to take account of his position and entertain an excuse on cause being shown, as, for example, where his reputation has been attacked by the parties or if a mortal enmity arises between him and the parties or one of them or if age or subsequent illness releases him from his duty or concern with his own affairs or an urgent journey or some service on behalf of the state,... (D.4.8.15.)

Another form of receptum was that arising from informal guarantees given by inn­keepers, stablekeepers, or ships' masters, concerning the safety of property left in their care. This form of receptum gave the customer an alternative remedy to suing under quasi-delict (see 10.7.3). Under the latter head of liability, the defendant was responsible for damage caused by his employees, whereas liability in receptum: extended to damage or loss howsoever caused, apart from overwhelming force. Receptum argentarii (‘the undertaking of the banker') was an agreement by a banket to honour his client's debt to a third party. It was fused with constitutum debit! and fideiussio (see 9.4.3.5) under Justinian.

9.8.3 Statutory pacts

During the late Empire, a number of informal agreements came to be recognized (through imperial decree) as enforceable, e.g. pactum dotis—a promise to give dowry;

Obligations: Common Principles and Obligations Arising from Contracts 315 pactum donationis—a promise to make a gift; and compromissum—an agreement by two parties to submit to arbitration.

9.9