Permutatio and the rise of actiones praescriptis verbis
But, of course, not nearly all problems could be solved in this or a similar fashion. One need merely look at exchange agreements (permutatio). We have seen that the Sabinians were prepared to grant the actiones empti and venditi, but that in the end the Proculian view prevailed: without a purchase price in money there could be no sale.[2751] [2752] Thus, permutatio remained within the "no man's land" of unenforceable pacta.
Other informal arrangements which could not be brought under one of the existing contracts, or which combined certain elements of two or more of them, shared this fate. Under these circumstances it cannot always have been easy for the parties to determine whether their transaction was binding or not, and a rigid adherence by the Roman lawyers to a closed system of contracts and actions would have caused considerable hardship. A remedy therefore came to be provided, at least in cases where one of the parties had visibly relied on the enforceability of the arrangement and had performed his side of it in the expectation that the counterperformance would also be forthcoming. A and B have agreed to swop their sedan chairs. Unless it had been couched in the form of two stipulations, this transaction was not enforceable. Once, however, A had handed over his sedan chair, the situation changed. True: if B did not reciprocate, A could always claim it back. In fact, this was one of the typical instances in which an unjustified enrichment claim was granted (viz. the condictio causa data causa non secuta).159 But A had not given his sedan chair to B merely in order to get it back soon afterwards. He had honoured the arrangement made with B and could now reasonably expect B to do likewise. It is in this type of situation that the praetor intervened ("adiuvandi vel supplendi vel corrigendi iuris civilis gratia",[2753] as usual) and granted an actio in factum to A.[2754] It was an action "on the facts of the case", modelled as closely as possible on one of the existing contractual remedies. "Quod As As de ¹ ¹ [hominem Stichum] emit..." was the demonstratio of the formula for the actio empti.[2755] Use of the technical term "emit" rendered redundant any further specification of what this transaction was about. Exchange was not sale, but it was similar to it. Hence one could conveniently use the actio empti as the basis for the claim and merely modify it by referring to the specific agreement which the parties had concluded. This was done by substituting the terms of this agreement (and in so far: the specific facts of the case) for the term "emit" in the demonstratio of the formula. Since the actio empti (and the other contractual actions used as models for the actiones in factum) were in ius concepta, one also referred to actiones in factum civiles.[2756] Since the facts of the case (on the basis of which this action was granted) were spelt out at the outset of the formula (they were "prefaced"), the term "actio praescriptis verbis" also came to be used.[2757] And since, apart from the demonstratio, the formula was identical to that of the actiones empti, venditi, locati or conducti, all these actiones in factum (civiles) or praescriptis verbis were bonae fidei indicia.[2758]2.
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