INNOMINATE CONTRACTS AND PACTS

The categories of contract noted above could not cover every situation where two parties entered into an agreement with the intention that it should be legally enforceable. For this reason, as the law developed, other forms of agreement were given some legal recognition.

The first category of such agreements was that of innominate contracts. These contracts were bilateral (i.e. they imposed obligations on both parties) and involved an agreement to pay, give or do something. Examples include barter (permutatio) and agreements where goods were supplied on the basis that either an agreed price would be paid or the goods would be returned (aestimatum). The praetor would allow the enforcement of an innominate contract in the situation where one party had performed his side of the bargain and the other had not.

Pacts were agreements that did not fall either within the recognised categories of contracts or within the category of innominate contracts. These were not normally directly enforceable, but could be pled as a defence to an action. Some pacts were, however, made directly enforceable by praetorian or imperial intervention. Examples included constitutum (an agreement to pay a debt) and receptum (an agreement by a shipowner, innkeeper or stable­keeper to keep safe goods entrusted to him).

Essential Facts

• The law of obligations is concerned with personal rights, rather than real rights.

• The Institutional Scheme distinguishes between contracts, delicts and a number of other types of obligation, called by Justinian quasi­delict and quasi-contract.

• Roman law had no general law of contract. Instead, specific contracts were recognised, divided into four categories in the Insti­tutional Scheme. The recognised categories were contracts created by conduct, contracts created by words, contracts created by writing and contracts created by agreement.

• The contracts created by conduct all involved the delivery of some item of property. These were the two contracts of loan (mutuum and commodatum), deposit and pledge. All except pledge were gratuitous.

• The main form of contract created by words was stipulatio, which was created by a formal exchange of words. Unlike the other contracts, it was not restricted as to content.

• The contract created by writing was an old form of contract created by entering a debt in an account book.

• The contract of sale was one of the contracts created by agreement. It required the exchange of a price in money for delivery of the property. The seller did not, however, guarantee ownership, only that the buyer would not be evicted from possession of the property.

• Hire, though identified in the Roman sources as a single contract, was in fact three related types of contract created by agreement. The three types of hire were hire of a thing, hire of services and hire of a piece of work. In all cases, it was necessary to agree on the subject matter and hire charge.

• Partnership was a contract created by agreement, which involved two or more parties pooling resources or labour. Unlike a modern partnership, this was not necessarily a commercial arrangement.

• Mandate was a contract created by agreement, and involved one person being commissioned to act gratuitously on behalf of another.

Essential Cases

Sloans Dairies Ltd v Glasgow Corporation 1977 SC 223: the parties entered into a contract to sell buildings. Before ownership was transferred, the buildings were seriously damaged by fire. The court held that the Roman rule applied that risk passed on the making of the contract. Accordingly, the buyers were obliged to pay notwithstanding the damage.

Duncan v The MFV Marigold Pd145 2006 SLT 975: Roman authority (Paul, D.3.5.21) on the conduct of the winding up of a partnership following the death of a partner was discussed in relation to the same issue in modern law.

Marjandi Ltd v Bon Accord Glass Ltd (unreported, Aberdeen Sheriff Court, 15 October 2007): this case contains extensive discussion of the classification of contracts of hire drawn from the French ius commune writer Pothier, himself referring to J.3.24.4.

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