Questions

Chapter i (Obligations: The Conceptual Map)

1. What is an obligation?

2. What is the metaphor which is heavily relied upon in the language of obligation? (Cf. Fr. lier; Eng.

3. �Now let us move on to obligations.’ From what? How do obligations fit into the institutional picture of the law?

4. What is the difference between obligations and other �incorporeal things’?

5. Gaius uses a two-fold classification of obligations. What kind of classification is it?

6. What is wrong with Gaius’s two-fold classification? What was done to try to remedy its defects?

7. What classification does Justinian use? In what two respects does it differ from that of Gaius?

8. What, in brief, is meant by �contract’, �delict’, �quasi-contract’ and �quasi-delict’?

9. What was the condictio?

io. Considered as a legal category, what unity did the condictio have?

ii. What was the effect on the condictio of the decision to divide obligations by the events by which they were created (contract, delict, etc.)?

12. Why does Gaius examine discharge of obligations between contract and delict (cf. G.3.182)?

13. Why do we say that �delicts’ as discussed by Gaius are not �crimes’ but civil wrongs?

14. How is the law of delict divided? Are there any delicts which Gaius and Justinian omit from the Institutional exposition?

Chapter 2 (The Organisation of Roman Contract)

I. How does Gaius classify contractual obligations?

Chapter 3 (The Contract Litteris and The Role of Writing Generally)

1. What is the distinction between dispositive and evidential use of writing?

2. The name of the contract litteris in Gaius’s time is expensilatio.

3. To what action did expensilatio give rise?

4. What purpose did expensilatio serve?

5. What is meant by �novation’?

6. What combination of rules allows Justinian to say that in his time the contract litteris still existed?

7. Why did Justinian preserve the category of contracts litteris at all?

8. What signs are there that writing, technically only evidential according to Roman theory, in practice played an enormously important role in contract?

9. What did Justinian do, stopping short of breaking with classical theory, to recognise the importance of writing in Hellenistic law and practice? In relation to stipulatio? In relation to other contracts?

10. What was arra? And what was its use in classical law?

11. To what special use did Justinian put the �arra rule’ in relation to his reform of contracts in scriptis?

12. Did Justinian’s reforms in relation to writing leave the consensual contracts even theoretically intact?

Chapter 4 (Contracts Verbis)

1. How was a contract of stipulation made?

2. What role, if any, did writing have in relation to stipulatio?

3. Why did �declaration of dowry’ and �freedman’s oath’ not require the question and answer form?

4. The word �dari’ recurs many times throughout Gaius’s andJustinian’s treatment of the stipulatio. What is the ordinary meaning of the word and what is its technical legal signification?

5. What are the main causes of invalidity of stipulatio which Gaius enumerates? Distinguish between the effects of �initial’ and �subsequent’ impossibility.

6. Is there any good reason why a stipulation for the benefit of a third party should be regarded as void?

7. Are stipulations post-mortem merely a particular example of invalidity arising from want of privity?

8. What is the difference between a stipulation for conveyance to me and Titius and a stipulation for conveyance to me or Titius?

9. What incapacities are peculiar to contracts verbis?

10.

11. Why did stipulatio not provide the basis for a �general’ law of contract, avoiding the need for a law of specific contracts?

12. What is the difference between �real security’ and �personal security’?

13. Where in the Institutional scheme does the law of real security belong?

14. What types of personal security does Gaius mention? Were there any other types?

15. How is the length and detail of Gaius’s treatment of personal security to be accounted for?

16. In what way is the law ofpersonal security more simple in the time ofJustinian?

17. Suppose the guarantor has to pay. How, if at all, can he recover from the principal debtor?

18. What provisions were made to share the burden between a plurality of guarantors?

19. Was the creditor compelled to demand or sue for his money from the principal debtor before turning to the guarantors?

20. What was litis contestatio and what was its principal consequence?

Chapter 5 (Contracts Consensu)

1. What is meant by the term �consensual contract’?

2. To what actions (forms of pleading) do the consensual contracts give rise? Do any other contracts or events give rise to similar pleadings?

3. Why were the consensual contracts necessary given that sales, hirings and so on could easily be arranged by stipulation?

4. Gaius omits from his introductory treatment of sale many of the matters which were in practice of crucial importance. Can you enumerate the principal omissions?

5. Upon what aspect of the law of sale does Gaius concentrate?

6. In terms of the actions (actio ex empto and actio ex vendito) what is the key to Gaius’s exposition?

7. How did Justinian approach the problem of valuation by a third party?

8. Suppose an agreement to buy and sell �for as much as you think reasonable’ or �for as much as you bought it for’.

9. What would the Proculian school have made of the common modern trans­action in which a customer obtains a new car from a garage by �part-exchange’?

10. What is the strength of the Proculian view that �the price must be in money’?

11. Did the decision to classify barter (permutatio) as a separate contract mean that parties to such a transaction were deprived of all recourse to the courts?

12. Suppose I accidentally agree to sell a priceless statue for a trivial sum. If sued, could I challenge the demonstratio of the actio ex empto (i.e. deny that I had sold)?

13. Gaius does not discuss requirements of certainty in relation to the res. If you agree to let me have two dozen bottles of Falernian wine for 500 denarii, can I plead �Whereas I bought, etc.’?

14. In classical law what were the seller’s obligations in respect of title?

15. And in respect of legal defects such as adverse servitudes?

16. And in respect of substantial defects?

17. How did Justinian change the law in relation to the seller’s liability for substantial defects?

18. At what moment does ownership pass from seller to buyer?

19. Does �risk’ pass at the same moment?

20. What do the words locare and conducere mean? Does payment of the merces proceed from the locator or the conductor or sometimes from one and sometimes from the other?

21. In what ways is locatio-conductio wider in scope than the contract which we call hire?

22. Is it possible to define locatio-conductio in such a way as both to establish its unity and to differentiate it from all other nominate contracts?

23. What exactly are the problems of differentiation between locatio-conductio and other contracts in relation to (i) emphyteusis, (ii) the gladiators and (iii) the goldsmith?

24. Could the reward (merces) in the contract of locatio-conductio be in kind rather than in money?

25. What are the principal obligations within the actio ex conducto (i.e.

26. What are the principal obligations within the actio ex locato (i.e. what �ought a conductor to give or do ex fide bona’)?

27. Gaius does not define partnership (societas). What definition should we supply?

28. Was a Roman societas a legal person (like a modern company)?

29. Were the socii (the partners) agents for each other in the conduct of partnership business? For example, if partner A ordered 5000 amphorae of wine at 10 denarii each and failed to pay, could the seller sue partner B?

30. What is meant by the statement that partnership was concerned solely with the �internal relations of the partners’?

31. What was the typical scope of societas (G.3.148)? What partnership provides the background to Cicero’s speech Pro Roscio Comoedo?

32. Was it necessary to fix the shares of profit and loss before a societas could be said to have come into existence?

33. According to G.3.149, what was the difference of opinion between the pre- classical jurists Quintus Mucius (consul in 95 BC) and Servius Sulpicius (praetor in 65 BC)? What was societas leonina (partnership with a lion)?

34. What were the principal events which would bring a partnership to an end?

35. What was the object of bringing an actio pro socio?

36. How did the species of societas peculiar to Roman citizens differ from ordinary consensual societas (G.3.154a-b)?

37. How do the relations created by the contract of mandate differ from those entailed by modern �agency’?

38. How are the contracts of locatio-conductio and mandatum to be differentiated (cf G.3.162)?

39. Why is there no contract if the mandate is tua gratia (for the sake of the mandatarius only)? What is the difference between a mandate �Lend out your money’ and another �Lend out your money to X’ (G.3.156)?

40. What were the consequences of the mandatary’s going outside the terms of the mandate (G.3.161)?

41. What were the principal obligations demanded within the actio mandati directa (the mandator’s action) and the actio mandati contraria (the mandatary’s action)?

42.

43. What was the consequence if the slave who made the contract was owned by X but was possessed by Y in the belief that he was owner? And what would happen if the slave, owned by X, was subject to a usufruct in Y (G.3.165—6)?

44. A slave might be owned by, say, three brothers, Seius, Lucius and Titius. What would the consequence be if he purported to contract solely for Lucius (G.3.167-1673)?

45. In the treatment of, for example, societas there are many references to events which bring the contract to an end. How many modes of discharge does Gaius enumerate? How should one explain Gaius’s selection, in this specialised discussion, of these particular modes of discharge?

Chapter 6 (Contracts Re)

1. What is meant by �contracts re’?

2. How does the category of contracts re differ in Justinian’s Institutes, compared to Gaius’s?

3. Differentiate between the four �real contracts’: mutuum, depositum, commodatum and pignus. What grounds are there for saying that mutuum is a cuckoo in this nest?

4. What is the effect of an agreement between creditor and debtor that money lent shall not be repaid or shall be repaid only as to one half the capital sum?

5. What is the meaning of the concept used in G.3.206 called �custodiam praestare’ (safety-guarantee)?

6. What is the content of the obligation custodiam praestare in relation to commoda­tum? What kind of people come under this custodia liability?

Chapter 7 (Furtum)

1. Between G.3.182 and G.3.194 Gaius is talking about different measures of theftuous liability. How many such measures were there in his time?

2. From G.3.195 to G.3.201 Gaius is talking about the elements of theft. What elements does he identify?

3. The definition of theft given by Paul in D.47.2.1.3 is this: �Furtum est contrectatio rei fraudulosa lucri faciendi gratia vel ipsius rei vel etiam usus eius possessionisve’ (Theft is the fraudulent contrectation of a thing for the sake of making a gain from the thing itself, from its use, or from its possession). Does Paul’s definition introduce elements absent from Gaius’s discussion or omit elements present in Gaius’s discussion?

4. In G.3.202 Gaius discusses liability for �helping’ theft. What was necessary in order to make a man liable for theft �ope consilio’?

5. What is the point of Gaius’s mention in G. 3.202 of the case of a herd driven away �per lasciviam’ (for fun)?

6. Who is allowed to bring an actio furti (action of theft)?

Chapter 8 (Rapina)

1. What was rapina and why did the praetor provide an additional action for it?

Chapter 9 (Damnum Iniuria Datum)

1. When was the lex Aquilia passed? Was it technically a lex?

2. What is the relationship between the Aquilian delict and furtum?

3. In developed law, was the scope of the Aquilian delict (damnum iniuria datum) controlled solely by the lex itself?

4. The outline of the delict is carried by the name �damnum iniuria datum’. What does each word mean?

5. From the plaintiff’s viewpoint, what kind of loss-causing disasters fell with chapter I and chapter III of the lex Aquilia?

6. What must be true of the defendant in order to make him liable for those disasters?

7. What was the measure of recovery for damnum iniuria datum?

8. What were the main praetorian extensions of the statutory liability under the lex Aquilia?

Chapter 10 (Iniuria)

1. The delict rendered in these lectures as �contempt-iniuria’ is in Latin merely �iniuria'. Can you account for a delict having such an extraordinary name? Are there any parallels in modern law?

2. The content of �contempt-iniuria' is very diverse. Does the category have any unity? Is it possible to frame an abstract definition of the delict?

3. Gaius, at G.3.223, is concerned with the early history of the delict iniuria. What in outline was the story of its development?

4. What problems arise in relation to these three delictual events: (a) negligent injury to a free man, (b) kicking a slave, (c) sexual harassment of an ancilla?

5. Would the Roman jurists have classified racial discrimination as contempt-iniuria?

6. Can the measure of recovery for contempt-iniuria be called �compensation’?

Chapter 11 (The Quasi Categories)

1. Where did the two quasi categories come from? Do they appear in Gaius’s Institutes?

2. What events fall in the category quasi ex contractu according to J.3.27?

3. Does the phrase �quasi ex contractu’ mean �implied contract’ or �sort of contract’?

4. What is the factor common to all events in the category of quasi-contract?

5. What, if any, connexion is there between quasi-contract and �unjust enrichment’?

6. Should any events other than those listed in J.3.27 be counted as quasi­contracts?

7. Should the term �quasi-contract’ be replaced and abandoned?

8. What events are listed in J.4.5 as belonging to the category quasi ex delicto?

9. What theories have been advanced to explain why it was thought necessary to have a category of quasi-delict?

10. If we could start again with a clean slate, what classification of obligations would we use? Would quasi-delict (or an equivalent category differently named) have any place in the scheme?

11. In the exercise of classifying obligations the ones which cause difficulty are always those which are both (a) imposed irrespective of the consent of the person subjected to the obligation, and (b) not explicable in terms of fault on that person’s part. What explanations of such obligations have been relied on in the past?