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14 Cards in this Set
- Front
- Back
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When did good faith come into Stricti iuris contracts Why was stipiulatio not as good as the bonae fidei contracts ? Why were unilateral contracts bad for business ? |
- ‘Strict liability’. Only form counted, the iudex would simply ask whether there was an obligation, if there was the party would be forced to honour it until appr. 50BC when exceptio doliand exceptio metus were granted by the praetor. - stipulatio was only needed to fill certain gaps. - Two stipulatiocould work for a purchase, but the buyer is vulnerable if unhappy with theseller’sperformance, eg. defective item - Unilateral contracts are bad for business - parties would have to make multiple and they would operate independently of one another s if one part did not perform the other would still have to |
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Why were bonae fidei contracts more suitable for incoprating good faith ? Give examples of how good faith came into the actions |
Nature of bonae fidei contracts is more suitablefor incorporating good faith, since duties correspond to duties (and rights torights). Eg. actio empti formula includes ‘good faith’ requirement. This wasassessed by iudex discretion. Eventually jurist categorisation created distinctrules |
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Explain how the jurists developed what was considered good faith ? with the warrant against eviction At first republic |
First: a stipulatio would be given alongsideemptio venditio ensuring compensation (stipulatio duplae if res mancipi orother valuables, otherwise stipulatio habere licere). Not often given in aseller’s market Late Republic: considered bad faith not to giveit because it was common practice. |
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What does julian say about denying the warranty from eviction eventually If denyed what would the seller by condemned for ? |
Julian: bad faith to deny it. That is, goodfaith is implied in the sale and always actionable by actio empti. The selleris condemned for same amount as stipulatio habere licere, and stipulatio duplaewas retained as a separate stipulatio alongside |
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Apart from warranty from eviction what other things became good faith over time what happened if you were in breach of good faith ? |
- latent defectsworked in the same way as eviction. It could not be contracted out of, becausegood faith became inherent to the contract (when it became bad faith to denyit). If breach of good faith, enture contract is void |
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How did good faint enter into the contract of societas ? |
- Contract voidif accusation of bad faith, since it depended on trust (compared to ‘brotherhood’)- If A ended it in order to retain more profit, that wasbad faith and gave rise to actio pro socio, resulting in infamia. - Based on trustand confidence (from ‘amicitia’/‘fides’). |
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How did good faith enter into mandatum |
- Also based ontrust. Gratuitous contract. - Republic: friends- Empire: cognitio extraordinaria —(how?)—> allowed people to take money. in fact a remunerated vocation what had formerly been done as a consequence of house hold subordinationgeneral mandate (even as a profession) |
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What was bad faith in manadtum What were the mandator duties and liabitils |
Not executing task- Failing to transfer any property or rightsonto mandator Liable forculpa levis - Had to accept the performance when done - Accept any rights and obligations incurred - Reimburse mandatary |
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how did good faith enter into the Contract of hire |
Same as contract of sale in that it was bad faith not to provide a warranty against eviction or for defectsit would be bad faith for the employer not to pay the agreed wage if he had hired out the labour of a person. If a person had hired out his labour and the workman did not do as he was told or he lacked the skills to do as he was told, this was classed as culpa and therefore bad faith. |
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Apart from the form of stipulatio, are there other reasonsfor having other contracts? yes unilateral |
- Yes, it isunilateral. A complex contract (eg. societas) would need lots of separatestipulatio that work independently of each other so it would be practicallyimpossible. - Bilateral: a duty depends on the fulfilment of the other’s corresponding duty |
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Apart from the form of stipulatio, are there other reasons for having other contracts? comercialisation |
Yes. Commercialisation leads to more complextrade with people you don’t know. In an agricultural society (12 tables,stipulatio, note res mancipi = agricultural importance etc) there is limitedtrade and social remedies, eg. bad reputation, is enough in small communities. - When Rome —> international commercial center, bona fide isneeded |
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Apart from the form of stipulatio, are there other reasons for having other contracts? - stipulatio is too rigid |
- Yes, stipulatiois too rigid. - Bonae fidei iudicia introduced already appr. 200BC,meaning 150 years of setting the pattern before exceptio doli and exceptiometus. Any reason for introducing it apart from gilling the gaps? |
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What did bonae fidei contracts allow |
packages of rules accumulated from generalprinciples. Stipulatio only applied to the exact words used, eg. if promisingto build a boat, the standard of work must be accurately specified, which canbe difficult and forgotten. - Everyone knew implications of a sale, and itwas expedient that things were soon implied. Legal foreseeability for ordinarypeople. - This development could have happened tostipulatio as well. |
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What could have happened if bonae fideis was formless |
If formless, there could have been conditionalstipulatio = bilateral contracts. Stipulatio would have developed if nothingelse introduced. This would have created a general law of contract based onagreements, without special categories. |
