Pub Date : 2021-06-17DOI: 10.1093/OSO/9780197573211.003.0007
B. Frier
The Roman system of contracts left out of account many agreements that deserved enforcement, especially in a developed economy. The jurists clearly recognized the limits of their system, in particular the sometimes obscure boundaries of recognized contracts and the difficulty in recognizing new ones. For agreements that could not be accommodated, they eventually developed a rather awkward mechanism whereby, in principle, a contractual promise only became enforceable after one party performed its side, after which it could demand that the other party either carry out its promise or provide restitution of unjustified enrichment. This mechanism provides relief, but is obviously imperfect. Still, the jurists were at least willing to carry over from the recognized contracts some implied rights and duties.
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Pub Date : 2021-06-17DOI: 10.1093/OSO/9780197573211.003.0002
B. Frier
This brief chapter gives an overview of the diminished contractual capacity of some Romans: children, the insane, young adults, and women. The law is intended to protect them, but also those with whom they make contracts, some of whom may be unaware of their partners’ limited capacity. The role of guardians in authorizing transactions is emphasized. The material in this chapter is introductory, for students who have not previously studied the law of status; this law has important effects on the overall structure of Roman contract law. The subject matter is partially taken up again in Part A of Chapter VII, where the ability to acquire rights and duties through one’s dependents is examined.
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Pub Date : 2021-06-17DOI: 10.1093/oso/9780197573211.003.0009
B. Frier
The jurists recognized that there were some situations in which a contract-like set of duties and obligations arose from circumstances involving no agreement between the parties. The two most influential forms of such “quasi-contract” are unauthorized administration of affairs (negotiorum gestio) and what is now called unjustified enrichment (actionable through the condictio). Although this body of law remained somewhat underdeveloped, it contains many important insights into Roman concepts of obligation. Particularly for unjustified enrichment, the jurists clarified when a benefit conferred upon one person at another’s expense can be reclaimed on the basis that the recipient has no legitimate basis for retaining the benefit.
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Pub Date : 2021-06-17DOI: 10.1093/OSO/9780197573211.003.0001
B. Frier
The Introduction surveys the development of Roman contract law through the Edict of the Urban Praetor and the writings of the Roman jurists. Emphasis is particularly on three concepts central to the overall architecture of Roman contract law: consensus (agreement); bona fides (good faith); and, to a more limited extent, causa (cause or reason for contracting). The law of contracts is placed in the more general framework of obligation and debt. This rich intellectual heritage relates directly to the character of the Roman economy as it developed from the archaic period to the Empire. Finally, the introduction discusses late imperial handling of Roman contract law.
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