Innominate Contracts

The innominate contracts are a group with a confusing name, for many of them did in fact have names. What they all had in common was that they were enforce­able when one party had performed his or her side of the bargain, but the other had not.^[2332] As a general principle, the praetor allowed agreements of this kind, where either something had been given^{[2333] [2334] by one party to the other or one had performed labour for the other, to be enforced using the actio praescriptis verbis? Before this, the only remedy was to claim for the restoration of the value of the property using the condictio, or else, perhaps, the actio de dolo1 Various specific examples are worthy of mention.}

Permutatio (barter) was an exchange of property, rather than an exchange of property for money:^{[2335] [2336] as we saw in Chapter 20, after disagreement among jurists, it was eventually settled that this did not count as a sale.[2337] Permutatio, however, was very similar to sale, and was governed by many of the same rules. One difference, however, was that in permutatio each party guaranteed that ownership would be transferred; there was therefore no need for eviction to found a claim.[2338]}

Aestimatum was a form of sale or return, in other words where the buyer of goods was given a period of time in which to decide whether to keep them or reject them.^[2339] In an aestimatum, the seller retained ownership until the approval period had expired or the buyer acted in a manner inconsistent with a right of return. Nonetheless, a buyer who sold the goods before the approval period expired was able to give ownership. After all, selling the goods was inconsistent with a right of return, so by doing so the buyer was making the choice not to return them.^[2340]

Transactio was a compromise of an action,^[2341] something that remains very com­mon when success in litigation is doubtful. A transactio could be made formally, using stipulatio, but an informal compromise became binding when the actio prae­scriptis verbis was allowed. After this point, a party to litigation, who abandoned that litigation on the strength of an informal undertaking, could then sue on the basis of that undertaking.

Precarium was a permission to use property belonging to the granter.^[2342] It differed from a commodatum^[2343] in being of a fixed duration, and from a gift by being tem­porary The property was recoverable using the interdict de precario, butJustinian classed this also as an innominate contract.^[2344]

D.