Chapter Summary
The consensual contracts were so called because they were all constituted by agreement. There were four of them: sale, hire, mandate and partnership. Sale is an exchange of identified property for an identified price.
Hire is really three different kinds of arrangement, though the distinction is not made explicit in the Roman sources: a hire of a thing (a lease of land or moveable property), a hire of services (essentially a contract of employment) or a hire of a piece of work (an arrangement for a specific task to be performed in exchange for payment). Mandate is a contract by which one person agrees to undertake a task for another. It is gratuitous: if payment was made, the contract would be a hire of a piece of work. A partnership is a contract by which two or more people agree to share profits and losses, either for some particular undertaking or for their whole property and affairs.The consensual contracts are, of all the Roman contracts, the most like modern contracts and, indeed, they have had the greatest influence on the modern law of contract. Many rules from these contracts have been received into modern law, such as the rule allocating risk in sales. Likewise, the position on liability for defective property in a sale has been influential on later law.
Equally, there are important differences from modern law. For example, although mandate has some similarity to modern agency, it does not have the full consequences of agency. A person acting under mandate cannot bind the principal by his or her acts. Again, unlike a modern partnership, a Roman partnership is not necessarily a commercial arrangement, it has no legal personality, and the partners are not agents of the partnership or of each other.
Further Reading
G.3.135-62
J.3.22-6
D.17; 18; 19; 21
C.4.35, 37, 38, 45-58, 65
P Birks, The Roman Law of Obligations (E Descheemaeker ed, Oxford University Press 2014) chapter 5
D Daube, ‘Societas as Consensual Contract' (1938) 6 Cam LJ 381
D Daube ed, Studies in the Roman Law of Sale: Dedicated to the Memory of Francis· de fulueta (Oxford University Press 1959)
B Frier, Landlords and Tenants in Imperial Rome (Princeton University Press 1980) J Mackintosh, The Roman Law of Sale, With Modern Illustrations 2nd edn (T & T Clark 1907)
E Metzger ed, A Companion to Justinian’s Institutes (Duckworth 1998) 150-68
P du Plessis, ‘Between Theory and Practice: New Perspectives on the Roman
Law of Letting and Hiring' (2006) 65 Cam LJ 423
A Watson, Contract of Mandate in Roman Law (Oxford University Press 1961)
A Watson, ‘The Origins of Consensual Sale: A Hypothesis' (1964) 32 TvR 245 F de Zulueta, The Roman Law of Sale: Introduction and Select Texts (Clarendon Press 1945)
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