Range of transactions
It can no longer be doubted today[2759] that these remedies already began to be granted in classical law. They brought about, in actual practice, a considerable relaxation of the rigours of the classical scheme of contracts.
On the other hand, the contributions of East-Roman school jurisprudence are considerable too, particularly in the field of systematic analysis. To try to disentangle details of the development is difficult, if not impossible. But the end result is clear: by the time of Justinian, a new class of contracts had come to be recognized,[2760] These contracts were "innominate" in that the actions were not individualized by a specific name[2761]—the demonstratio did not, as we have seen, merely refer to emptio or locatio, but to the specific terms of the arrangement; and they were "real", in that the right to claim counterperformance became enforceable only once performance had been rendered.[2762].[2763] Hence the term "innominate real contracts". According to Paul (or rather: Tribonian) D. 19, 5, 5 pr., there were four types;.. aut enim do tibi ut des, aut do ut facias, aut facio ut des, aut facio ut facias."[2764] This classification is of little systematic value, but it shows how broad the range of application was.[2765] It covered all reciprocal consensual agreements apart from emptio venditio and locatio conductio, no matter whether performance or counterperformance consisted in dare (aliquid) or facere (aliquid)."Et si quidem pecuniam dem, ut rem accipiam, emptio et venditio est: sin autem rem do, ut rem accipiam, quia non placet permutationem rerum emptionem esse, dubium non est nasci civilem obligationem, in qua actione id veniet, non ut reddas quod accepehs, sed ut damneris mihi, quanti interest mea illud de quo convenit accipere."17
This is permutatio (exchange), and it was an innominate real contract of the type of do ut des. If one of the parties had performed and the other was unwilling to counterperform, an action was granted; and the aim of this action was not merely a restitutionary one, but it was designed to put the plaintiff in the position in which he would have been had the bargain been completed.
"[D]edi tibi Stichum, ut Pamphilum manumittas" would be an example of do ut facias,[2766] "si pacti sumus,... ut tu in meo, ego in tuo solo aedificem"[2767] of facio ut facias. Many more could be added.[2768] Particularly in close-knit agricultural communities it was probably not a rare occurrence for neighbouring farmers to "borrow" each other's oxen in order to plough their fields,[2769] to work in each other's vineyards during the time of vintage (both cases of facio ut facias) or to remunerate certain services by payment in kind (facio ut des or do ut facias). No distinctions appear to have been drawn between these various "innominate" transactions; all were enforceable, under the same circumstances, by the same type of action.3.
More on the topic Range of transactions:
- Transactions in fraudem legis
- Will-orientation, mistake and the formal transactions
- SPECIAL TYPES OF SURETYSHIP TRANSACTIONS
- Range of application
- Chapter 7 Financial Transactions by Women in Puteoli
- COMBINED TRANSACTIONS: HIRE-PURCHASE IN ROMAN LAW
- The flexibility of the Roman stipulation: range of application
- The range of application of mandatum
- Range of liability of the conductor
- The range of law reports
- The range of the lessor's liability
- The range of application of negotiorum gestio
- Essential characteristics and range of application
- The range of application of locatio conductio operarum
- Just like the Roman contractual system, the whole range of condictiones supplementing it was received into the ius commune;
- Emptio rei speratae and emptio spei
- Innominate contracts
- Coactus volui, tamen volui