Obligationes - Additional Notes 2021

ROMAN LAW 271
ROMAN LAW OF OBLIGATIONS 2021

(Ms MRH de Villiers)
A. GENERAL INFORMATION
The lectures in this part of the course take place during the first and second semesters. The
lectures supplement the prescribed study material contained in this document.
The recommended textbook is P du Plessis, Borkowski’s Textbook on Roman Law (5th
ed, Oxford University Press, Oxford, 2015). This document sets out the specific parts of the
Borkowski’s Textbook that are recommended. This hand-out further contains additional
notes, which must be studied in detail. The revision exercises in the notes are especially
important, as they give an indication of the type of questions that can be expected in the
tests and exams. Some of these questions will be dealt with during the class discussions
and tutorials.
You will see that the notes also recommend that you consult the international standard
text on the Roman law of obligations, Reinhard Zimmermann’s The Law of Obligations –
Roman Foundations of the Civilian Tradition (Juta, 1990, reprinted by Oxford/Kluwer). This
book is important because it indicates how the Roman law of obligations forms the basis of
the laws of modern contract, delict and unjustified enrichment in many modern legal
systems, including that of South Africa.
The course is structured in accordance with the main sources of obligations in Roman
law. We start with a general introduction of what an obligation or obligatio is, and identify
contract, quasi-contract, delict and quasi-delict as the main sources of obligations (part 1).
Thereafter we will look at contractual obligations in general (part 2). This will be followed
by an overview of the four main sources of contractual obligations, namely:
• the oral agreements (contractus verbis: part 3.1 – 3.5);
• the written contracts (contractus litteris: part 3.6);
• the real agreements (contractus re: part 4); and
• the consensual contracts (contractus consensu: part 5).
© Department of Private Law, Stellenbosch University 2020

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This is followed by the obligations which are quasi-contractual, because they exhibit
certain characteristics of contractual obligations (obligationes quasi ex contractu: part 6).
With regard to delictual obligations), there is first a general, introductory overview (part 7),
followed by a more in-depth look at two important delicts, namely:
• damnum iniuria datum, which has to do with economic harm (part 8); and
• iniuria, which has to do with violation of one’s personality rights (part 9).
The last of the four sources of obligations are those that are regarded as quasi-delictual
obligations, as it is believed that they resembled delictual obligations (part 10).
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B. COURSE OUTLINE WITH SUPPLEMENTARY NOTES
1. GENERAL INTRODUCTION
1.1 The meaning of the obligation concept in Roman law

Recommended: du Plessis, Borkowski’s Textbook on Roman Law, chapter 9.1.1
Zimmermann, The Law of Obligations, pp. 1-10
Supplementary notes:
Borkowski’s Textbook on Roman Law deals broadly with the concept obligatio or obligation.
But where does this concept, which is one of the most important Roman contributions to the
law, come from? Today Romanists accept that between 450 BC and 100 BC the original
obligatio was not an imaginary legal bond (vinculum iuris), but an actual physical bond
(vinculum facti). Look at the definition of an obligation in Digesta 44 7 3 pr (see part 9.1.1
of Borkowski’s Textbook on Roman Law). It is said that the substance of an obligation
consists of someone being “bound” to give something, do something or perform something
for someone else. The word “bound” in that sense is a translation of the Latin word
“obstringat”, which actually means “to be bound with ropes”. The verb “obligari”, which is
related to the word “obligatio”, actually also means “to be bound with chains”. Originally,
therefore, this verb signified a condition of physical bondage: to be shackled, under the direct
physical dominium of the creditor. In the early development stages of the Roman law,
obligatio therefore had a completely realistic meaning and showed a literal physical
bondage: the debtor’s person, body and life were subject to the creditor.
The earliest physical restraint (vinculum facti) of the debtor can be found in the origin of
the Roman law of delict. Originally, a distinction was not drawn between the law of delict
and the criminal law (we shall return to this in part 7) and instead of crimes and delictual
contraventions being punished by the state, victims and their fellow tribe members had to
take the law into their own hands and enforce their rights by means of private vengeance.
If, for example, a member of tribe A was killed or injured by a member of tribe B, the victim
would go to tribe B’s homestead and take vengeance on the wrongdoer. The victim was
entitled to physically grab the wrongdoer to take revenge. They later accepted that tribe B
could pay an amount of money to atone for what was done or “buy off” the wrong.
To understand the personal bondage of the debtor it helps to analyse it in terms of a
distinction between obligatio (liability) and debitum (debt). In the earliest Roman law,
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obligatio (liability) and debitum (debt) were not necessarily linked. Even though the person
who committed the delict was liable to the victim, a debt to pay atonement or ransom money
did not automatically arise from the delict (see Zimmermann 5). The wrongdoer could avert
the vengeance by payment and if he could not or would not pay, the victim could still exercise
his right to attach the wrongdoer physically by means of a process known as manus
iniectio. In essence this meant that the debtor was bound in chains and detained for a
period of time in order to encourage payment. If payment was still not forthcoming, the
person who committed the delict could be sold into slavery on the other side of the Tiber
River (in Rome), or even killed and cut up into pieces. However, this last possibility of literally
getting your “pound of flesh” was evidently not applied in practice.
With time, the Romans realised that it would be useful to apply the type of liability which
arose from unlawful conduct or delict in situations where persons voluntarily undertook to
perform for someone else. One of the oldest transactions used for this purpose was nexum
(see 2.1.1 below). In terms of this transaction, a debtor undertook to be bound physically, in
his person, to the creditor if he did not pay.
However, unfortunately there was considerable exploitation by the patricians of poor
debtors from the lower ranks of the plebeians. But later on this position was relaxed: in
terms of the Lex Poetelia of 326 BC the cruel consequences of manus iniectio were
considerably restricted. The idea that a person would have to be pay for his debt in his
personal capacity was replaced by the idea of damages. It was realised that attachment of
the person of the debtor could not satisfy economic purposes. A person was then held liable
on the basis of certain legally recognised acts whereby obligations could be created, e.g. an
agreement or unlawful act.
The groundwork had been laid for the replacement of the peculiar distinction between
obligatio (liability) and debitum (debt). In the classic Roman law, the word debitum never
meant debt without liability – the concepts of debt and liability were, as in the modern law,
always seemingly present regarding normal obligations. A modern obligation therefore
implies that the debtor at the same time is liable to and under a duty to perform. If A lends
money to B, B is under an obligation to pay the money back: if he neglects his obligation, he
is liable to pay the money back. After judgment has been obtained against him, the judgment
will be enforced by the state – normally by attaching his assets.
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1.2 The sources of obligations
Recommended: du Plessis, Borkowski’s Textbook on Roman law, chapter 9.1.2

For the purposes of this course, the classification of obligationes according to their sources
is the most important. In this section we must shortly look at how this exceptionally influential
division, which is used by legal systems throughout the world, developed. As indicated in
the Borkowski’s Textbook at 9.1.1.2, Gaius (an influential jurist of the 2nd century BC)
identified the following sources of obligations in his Institutes
I 3. 88: Omnis enim obligatio vel ex contractu nascitur vel ex delicto. (All obligations arise either
from contract or from delict).
A contractus is an agreement, according to the civil law (ius civile), which is enforceable
by means of an action. A delict, as already seen, is an unlawful act whereby another is
harmed, and which could be the basis for a fine or payment of damages. This dual division
of Gaius’s Institutes was not sufficient to encompass all the obligations which were
recognised and enforceable with a personal action (actio in personam). This is why the Res
Cottidianae, which either is a later work of Gaius, or a later revision of his Institutes, contains
a third division:
D 44 7 1 pr (Res Cottidianae): Obligationes aut ex contractu nascuntur aut ex maleficio aut
proprio quodam iure ex variis causarum figuris. (Obligations arise either from contract or from
delict or by some special right from various [other] types of causes).
With this third division of ex variis causarum figuris, or obligations which arise “from
various [other] types of causes”, Gaius tried to cover all obligations that did not arise from
contract or delict. Examples of such other causes are management of another’s affairs
(negotiorum gestio), guardianship (tutela), and payment of a non-existent debt (the remedy
was the condictio indebiti). These are dealt with in section 6. The Res Cottidianae further
refers to some of the obligations that arise quasi ex maleficio. These are in turn dealt with in
section 10.
In the post-classical time, and probably around + 400 AD at the hand of in the system-
conscious law schools of the East, the obligationes ex variis causarum figuris were further
classified in obligationes quasi ex contractu and obligationes quasi ex delicto. This division
gives rise to the Justinianic classification of 530 AD of four types of obligation:
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I 3 13 2 aut enim ex contractu sunt aut quasi ex contractu aut ex maleficio aut quasi ex
maleficio (obligations arise from contract or as if from contract, from delict or as if from delict).
The division of obligations does not only deal with the development of a functional system.
Any division of obligations ultimately contains pronouncements on why a person should
legitimately be made to do or perform something to another.
The Roman divisions of obligations have exerted a profound influence on legal
development, globally. Various modern codes distinguish between contract and delict as
sources of obligations, and further determine that obligations can also arise in circumstances
which to a varying extent are in accordance with the Roman divisions of quasi-contract and
quasi-delict. In the Anglo-American common law, the notion of a law of obligations, with
various sources of obligations, is not yet firmly established, but this position is gradually
changing, especially due to the influence of the late Professor Peter Birks, Regius Professor
of Civil law at Oxford University.
In the next sections, the various sources of obligations will be dealt with in greater detail.
We shall commence with the oldest contractual obligations.
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REVISION: 1 GENERAL INTRODUCTION
SHORT QUESTIONS
Answer with only one word or concept.
1. What is the historical precursor of the ideal legal bond (vinculum iuris) of the classical Roman law?
2. What legislation contributed to the physical legal bond (vinculum facti) changing to an ideal legal bond
(vinculum iuris)?
3. What are the sources of the obligationes (obligations) of the classical Roman law?
4. What are the sources of the obligationes (obligations) of Justinianic law?
DISCUSSION QUESTION
1. “Hence, in the law which is documented, obligation signifies simply the right and duty relationship
between the parties without more. But the ancient origin of this legal phenomenon ... is still to be seen
in the ...intensely personal character of even developed obligation.” (Thomas, Textbook of Roman Law
218).
Provide explanatory commentary.
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2. OBLIGATIONES EX CONTRACTU (OBLIGATIONS ARISING FROM CONTRACT) IN
GENERAL
2.1 The oldest types of contract

Borkowski’s Textbook on Roman Law, does not discuss these types of contracts.
CONSEQUENTLY YOU NEED TO STUDY THE NOTES PROVIDED BELOW.
The oldest Roman contracts were nexum and sponsio. Both were already referred to in the
XII Tables of 450 BC, and both display features of the earliest type of obligatio, namely a
vinculum facti or physical bond whereby the debtor was liable in person to the creditor. The
fact that both contracts were recognised in the XII Tables shows that they were institutions
of the ius civile which were only available to cives Romani (Roman citizens). Nexum faded
away at a very early stage, while sponsio experienced a long phase of development. It later
became known as stipulatio (see 3.4 below) and played an important role till the time of
Justinian (i.e. around 530 AD).
2.1.1 Nexum
The precise operation of nexum is unclear, but it was presumably a transaction aimed at
establishing a loan. The transaction between creditor and debtor was concluded by way of
a procedure per aes et libram (“by way of bronze and a scale”) in the presence of 5
witnesses (all adult Roman citizens) and a scale holder. The means of exchange of earliest
times, uncoined copper or aes rude, was weighed and handed to the debtor, while the
creditor presumably uttered the following formula:
te mihi necto obligoque hoc aere aeneaque libra (I bind and tie you to me by way of this bronze
and scale).
After minted money was introduced, the money was counted and paid over, but the formality
to “bind” the debtor per aes et libram remained. Subsequently a time and place for payment
could also be determined and liability for interest could be established. The effect of nexum
was that the debtor (the nexus) was exposed to liability in person if he did not pay. Since
the witnesses were already present at the time of creation of the contract of nexum, no
further proof of liability was required, and the creditor could without further ado “attach” the
debtor personally by way of manus iniectio (literally: by manually grabbing him). As in the
case of iudicati (condemned persons), the creditor could have the debtor chained and, in
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extreme cases theoretically have him sold and transported across the river Tiber or even
killed (it is doubtful, though, whether this happened in practice).
The harsh treatment of the nexi, who presumably were mostly plebeian, was the cause
of continued strife between patricians and plebeians. As we have seen in the previous
section, the cruelty of nexum was ultimately alleviated by the Lex Poetelia of 326 BC. At the
same time, the notion took root that economic compensation should be obtained through
the person of the debtor. Nexum as contractus therefore disappeared early on from Roman
legal life and was replaced by a less formal type of loan, namely mutuum (more about this
in section 4.2). Nexum is nonetheless of interest since it gave rise to another legal act, the
solutio per aes et libram (payment by way of bronze and a scale) which continued to exist
until classical times as a debt extinguishing act for certain debtors, namely iudicati and those
who incurred liability per aes et libram. The debtor weighed the due amount of copper before
the scale holder and the witnesses, and then handed it to the creditor, whilst uttering the
following words:
me a te solvo liberoque, hoc aere aeneaque libra
(I release and liberate myself from you by way of this bronze and scale).
If the creditor accepted, the debtor’s obligation was extinguished and he was no longer
exposed to the harsh effects of nexum. Later, when coins came into use, the coins were
simply counted and handed over, but the formalities described above were still complied
with. A nummus unus (single coin) was tapped against the scale and handed over. This was
regarded as symbolic performance that extinguished the debt. This solutio per aes et libram
remained a valid form of symbolic performance into the classical period.
2.1.2 Sponsio
Very little is known of the historical origin of sponsio. However, due to the discovery of
certain texts of Gaius, it is certain that sponsio already existed in the time of the XII Tables,
and that it was the early name of the contractus that would later become the stipulatio. Gaius
further stated that a special legal remedy (the legis actio per iudicis arbitrive postulationem)
was introduced to give effect to a stipulatio. Due to the fact that the stipulatio of Gaius’s
times was a contractus that came into existence verbis sollemnibus or by way of solemn
words, i.e. by way of a question and an immediate and corresponding answer (see 3.1 for
further details), we can infer that sponsio came into existence upon the prospective creditor
asking the prospective debtor whether he promised to deliver a certain performance, and
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the prospective debtor responding immediately that he so promised. An obligatio for the
sponsor was established upon this formal oral question and answer.
The origin of sponsio has been the subject of considerable speculation. Kaser links
sponsio with an early Roman procedure whereby someone, at the end of the process,
stands surety that a specific person (e.g. the defendant) or a specific thing will be present
on a particular day. Furthermore, it has also been suggested that sponsio originally had a
sacred or ritualistic nature. It was perhaps a temple oath that went hand-in-hand with a
ritualistic sacrifice, requiring the presence and cooperation of a priest. Disregarding the oath
caused the debtor to be cursed, and anyone could then inflict the wrath of the gods upon
him. This would no doubt explain the solemnity requirements that attached to sponsio, and
later also to the stipulatio.
Regardless of its origin, sponsio lost its sacred nature early on, and its solemn character
was increasingly watered down. The stipulatio, a very important Roman contractus, now
developed out of sponsio (see 3.1 later).
2.2 Agreement, contractus and pactum

Recommended: du Plessis, Borkowski’s Textbook on Roman law, chapter 9.8
2.2.1 Introduction
Besides the fact that the oldest contract forms resulted in being physically bound, and that
the imaginary or virtual legal bond (vinculum iuris) between contracting parties only came
into being at a later stage, the most important characteristic of the Roman contract law
system is that it was a closed system as opposed to the modern contract law system, which
is regarded as an open system. This essentially means that a Roman contractus was only
enforceable if in a specific form. An open system of contract, in contrast to a closed system,
implies that the contracting parties are entitled to make any performance the subject of their
contract, as long as their agreement is not in conflict with the law, public policy or the boni
mores of society. Subject to these last mentioned limitations, parties to a modern contract
have complete freedom of contract.
In order properly to understand the Roman closed system of contract, and also the
difference between an open and closed system of contract, it is necessary to investigate the
concepts of agreement, contractus and pactum.
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2.2.2 Agreement
An agreement comes into existence when two or more parties establish a meeting of the
minds (consensus) about the creating of contractual rights and duties. Today agreements
often arise out of an “offer” being followed by “acceptance” – a mechanism totally unknown
in Roman times. The notions of offer and acceptance developed in + 1200 AD, when a form-
free promise (offer) started having the same legal force as a promise under oath. This idea
was further developed in the agreement theory that formed part of the natural law doctrine
of Hugo de Groot (1583-1645), who saw consensus (a meeting of the minds) as the basis
for the acquisition of rights and duties.
Also foreign to Roman law was the idea of freedom of contract as an expression of private
autonomy: this only developed in the 17th century AD. Contracting parties in the Roman law
were, however, free to choose the person(s) they wanted to enter into a contract with, and
to decide whether they wanted to enter into a contract at all (there was no obligation to enter
into a contract). Roman contracting parties were however bound (and limited) to certain
types of formally defined contracts.
2.2.3 Contractus
The contractus of Roman law was a specific kind of agreement, namely an agreement that
could be enforced by an actio civilis (an action granted by the ius civile, i.e. the civil law).
Although the contractus was based on consensus between the parties, it still had to comply
with strict formal requirements, prescribed for the specific agreement, in order to be
enforceable.
In keeping with the classification of Gaius (Institute 3 89), which was followed by Justinian
(Institute 3 13 2), the Roman types of contract can be divided into contractus re,
contractus verbis, contractus litteris and contractus consensu.
1) contractus re – besides consensus between the parties, the contractus had to be
completed with the handing over of the thing (res) to which it applied. There were four
manifestations of contractus re, namely
i) mutuum (loan for consumption);
ii) commodatum (loan for use);
iii) depositum (bailment, deposit), and
iv) pignus (pledge).
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2) contractus verbis – here the agreement was concluded by way of a formal oral
question and answer, which had to correspond in a certain way; the classic example
was the stipulatio, which we dealt with briefly above (see 3.1).
3) contractus litteris - here the agreement was reduced to writing in a certain way. This
contractus could for example manifest itself in the form of entries in an “accounting
journal” or by the drafting of a written proof of debt in terms of Hellenistic customs.
4) contractus consensu – this contractus was based solely on consensus (a meeting
of the minds) between the contracting parties. There were four manifestations of the
contractus consensus, namely
i) emptio venditio (sales contract)
ii) locatio conductio (lease of things, services, piece of work;
iii) societas (partnership) and
iv) mandatum (mandate)
Even though the Romans had a closed system of contracts, Roman contracting parties (just
like their modern counterparts that are subject to an open system of contracts) could make
almost any performance the content of their contract. This was achieved by pouring the
contractus into the mould of a stipulatio, especially as the formal requirements of this
contract were watered down). With the development of the contractus re innominati as
complete reciprocal contracts in post classical times, this type of contract could also be used
to make virtually any performance enforceable.
The content of a contractus was, in principle, determined by agreement between the
parties. In the case of a contract of sale or lease, part of the content of the contract was
often formulated by the economically stronger party (the seller or the lessor).
Contractus were often reduced to writing, also if no formal requirements were applicable.
Wood panels covered in wax were often used as writing material. When a document was
very important, it was signed by witnesses. Official documents (comparable to the modern
notarial deed) were used from 300 AD.
2.2.4 Pacta
An agreement that could not fit into one of the recognized contract forms, and could
accordingly not qualify as an enforceable contractus, was termed a pactum (plural:
pacta). The term pactum, derived from the verb pacisci (to make peace) and the noun pax
(peace), is very old. The term was already in use in the law of the XII Tables (450 BC), where
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it was provided that compensation for a serious bodily injury will only be allowed in the event
of a lack of a pactum about such compensatory settlement between the parties:
…ni cum eo pacit, talio esto
….let there be vengeance if a pactum cannot be concluded with him
The earliest trace of our modern contractual agreement is this early Roman compensatory
settlement agreement. In the same way consensus forms the basis of the pacta in the
Roman classic law, it is also the basis of the modern agreement or contract. A pactum could
then be distinguished from a contractus, which had to comply with some recognized contract
form. A pactum could not be enforced by way of a legally recognized actio civilis - hence the
name nuda pacta (naked - or vulnerable - agreements). However, regardless of the fact that
pacta were not legally enforceable, they were used from the time of the XII Tables as a
defence. This is illustrated by the pactum de non petendo - an agreement not to claim, which
was a defence against an action for personal injury.
In due course, three pacta were made pacta vestita (clothed pacta), and accordingly
became enforceable. These were: (i) subsidiary agreements or pacta adiecta; such pacta
were added to principal agreements, e.g. a clause granting a seller an option right in the
event of the buyer ever wanting to sell the merx); (ii) praetorian agreements or pacta
praetoria or honoraria so named because the praetor made these pacta enforceable, e.g.
where it was informally promised or undertaken to repay a debt or to fulfil an obligation at a
specific time and (iii) pacta legitima, which were made enforceable by the emperor –
examples include a pactum to give a dowry, to make a donation, or the agreement between
two parties to subject themselves to arbitration.
The late classical jurist Ulpian raised the question whether pacta had to be based on
some legal ground - in other words, whether a valid causa (just cause) had to exist before
a pactum came into being.
D 2 14 7 4: Sed cum nulla subest causa, propter conventionem hic constat non posse constitui
obligationem: igitur nuda pactio obligationem non parit, sed parit exceptionem. (But, when no
causa exists, it is settled that no obligation arises from the agreement. Therefore a naked
agreement does not give rise to an obligation but to a defence).
By requiring a legal ground (causa) for the existence of a pactum, the way was paved for
the Anglo American doctrine of consideration. This doctrine entails that consensus (a
meeting of the minds) alone is not sufficient for the formation of an agreement, and that
some form of consideration (something of value) also had to be given. Where such
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consideration was not given and received, one was then supposed to be dealing with an
unenforceable nudum pactum.
During the middle ages, subscribers to the Canon law (the law of the Catholic Church)
vigorously supported the idea that all pacta, including nuda pacta, should be enforceable.
They were, however, just as vigorously opposed by the legalists, who clung to the principle
in the Digest of ex nudo pacto non oritur actio (“no action arises out of a bare agreement”).
It was only in the 17th and 18th centuries AD that it became generally accepted that all
agreements not in conflict with the law or the boni mores (good morals) should be
enforceable. In this way, parties to a contract finally acquired full freedom of contract and
were no longer obliged to make use of a specific type or form of contract. From now on the
motto was: ex nudo pacto oritur actio (an action arises out of a bare agreement).
2.3 General principles of the Roman law of contracts

Recommended: du Plessis, Borkowski’s Textbook on Roman law, chapter 9.2
Supplementary Notes:
It has been indicated above that consensus or a meeting of the minds is essential for the
formation of a contractus, and accordingly also for the creation of legally binding obligations.
However, the consent had to be of a certain quality, and there were also other requirements
for creating a valid obligation. The most important factors that could influence liability were:
impossibility of performance (a dead slave cannot validly be sold); unlawfulness of the
performance (a contract cannot for example be in conflict with a provision of the law – as
with the prohibition on women standing surety, see 3.4 b later); and a lack of proper meeting
of the minds. The last mentioned category may in turn be sub-divided into (i) certain types
of error by the parties (specifically dealt with in the second semester, in the part of the course
dealing with the Roman contract of sale), (ii) coercion (vis et metus) and (iii) fraud (dolus),
which resulted in the consensus being incomplete or improperly obtained. With regards to
dolus, the exceptio doli was a defence that could be raised by the victim of fraud when it
was sought to enforce the contract. In the modern South African law of contract, the general
principles are far more detailed and precisely worked out, and you will have a chance to
study them in Private Law 371. However, in the study of Roman contract law, one must
guard against forcing modern concepts on an ancient system – Roman law was a separate
system and should be treated as such.
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REVISION 2: OBLIGATIONES EX CONTRACTU IN GENERAL
SHORT QUESTIONS
1 Which contractus were known in the XII Tables?
2 Which contracts replaced the oldest contract forms of nexum and sponsio in the classical Roman law?
3 Name three kinds of pacta vestita.
DISCUSSION QUESTIONS
1 To what extent may the original understanding of an obligatio as a vinculum facti (physical bond) be
related to the earliest contract forms of nexum and sponsio?
2 Explain the principle ex nudo pacto non oritur actio. Then briefly explain how this negatively formulated
principle developed into a positively formulated principle, namely ex nudo pacto oritur actio.
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3. CONTRACTUS VERBIS & CONTRACTUS LITTERIS (VERBAL AND WRITTEN
CONTRACTS)
3.1 The importance of contractus verbis and the most significant manifestations
Recommended: du Plessis, Borkowski’s Textbook on Roman law, 9.4.1 – 9.4.2
3.2 Classical formal requirements for the stipulatio and their subsequent decline
Recommended: du Plessis, Borkowski’s Textbook on Roman law, 9.4.3
Zimmermann, The Law of Obligations, pp. 68-75, 78-82
It may seem foreign to our modern understanding of contracts, but the Romans regarded an
oral promise as more binding than a signed document. This seemingly sacred bond that
arose from an oral promise by way of stipulatio is also reflected by the etymological origin
of the word. Stipulatio is derived from stipula (twig) or stipulus (binding), and some modern
Romanists associate it with the personal bond (vinculum facti) that arose from the earliest
Roman contract. It may also be linked to the earliest form of the stipulatio (sponsio), a sacred
oath sworn in a temple. The formal yet simple requirements of the stipulatio are responsible
for the stipulatio becoming the most important contract form in Roman legal practice.
Furthermore, these formal requirements effectively did away with any mistake or error that
could arise as to the content of the contract or the precise time at which it came into being.
The requirement that both parties be present (inter praesentes) further cancelled out the
kind of problems we experience in the modern law with postal contracts, or contracts
concluded by way of representatives. The Romanist Schulz (par 807) rightly describes the
stipulatio as a legal act that may be characterized by its “accuracy, brevity and simplicity”.
The formal requirements were so watered down over time that these advantages gradually
decreased.
3.3 The abstract nature of the stipulatio
It is obvious that a debtor would not promise some performance by way of stipulatio unless
such action was based on a causa stipulationis (a cause giving rise to the stipulatio, a
reason why the debtor is binding himself). Such a causa can arise, for example, where a
father has promised 100 as a dowry to Seius, who is on the verge of marrying his daughter.
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It is however not necessary to refer to this causa in the stipulatio itself. Where no reference
is made to the causa, an abstract obligatio comes into existence, and the promittens will
be liable even where the causa is defective or entirely absent – unless, of course, a causa
without defect or the existence of a causa was part of the form requirements. The reason
for the above-mentioned circumstance is that a stipulatio was regarded as a strict, formal
contract where the uttering of certain specific words bound the parties. Accordingly any
provisions that were omitted in the spoken terms of the stipulatio were not taken into account
as being part of the stipulatio.
With time, the true intentions of the parties became more important and the praetor began
accommodating the promittens by first granting him an exceptio mercis non traditae (an
exceptio or defence raised by a purchaser where a sale took place by way of a double
stipulatio, and the seller claimed payment without having delivered the goods), and later
granting him an exceptio doli (an exceptio on the grounds of fraud or misrepresentation).
Accordingly the strict working of the ius civile was tempered in order to allow justice to prevail
– outcomes were now fair instead of technically correct. The addition of the exceptio doli
placed an obligation on the judge to investigate the causa of the promise. Where, for
example, it was discovered that the person who made the promise to deliver did so only
because he was defrauded as to the real surrounding circumstances, or a misrepresentation
was made to him, then the exceptio doli could be used to release the person from his
obligatio in terms of the (fraudulently obtained) promise. However, the onus of proving that
the causa was absent or defective was still on the defendant (promittens who now refuses
to deliver due to having been misled), and it was difficult for him to convince the court.
This unsatisfactory state of affairs led to Caracalla making improvements, presumably in
215 AD. He decreed a rescriptum whereby someone who stipulated to repay money he
borrowed, but which was never paid out to him, could rely on the exceptio non numeratae
pecuniae (the exceptio that the money was never paid) when the creditor acted against him.
Relying on the exceptio in this way meant that the promittens no longer carried the onus of
proving an absent or defective causa (i.e. that the money was never given to him, and
accordingly no basis for a repayment contract can exist), and that the onus was now on the
creditor to prove aliunde (without recourse to the disputed causa) that the money was indeed
paid to the defendant. In addition to this defence, the defendant later acquired a new form
of attack (a claim), namely the querella non numeratae pecuniae. This could be used for
reclaiming the cautio (proof of his debt) and to extinguish his debt. Because these legal
recourses strongly advantaged the defendant/debtor, a prescription period was imposed on
the exceptio and the querella.
18
Given the working of the exceptio, which could be raised iure honorario (in terms of the
law created by the praetor), the abstract nature of the stipulatio should not be over-
estimated. (Note that before the creation of the exceptions, the fides of the parties were the
only guarantee against fraud or deceit on the part of the stipulator.)
Section 3.4 and further will be covered in the second semester.

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REVISION 3: CONTRACTUS VERBIS ET LITTERIS
SHORT QUESTIONS
1 Name three types of contractus verbis.
2 Name the formal requirements for the stipulatio in classical Roman law.
3 Name the value underlying the stipulatio.
DISCUSSION AND PROBLEM QUESTIONS

1 Discuss the following statements critically and with a view to the development of Roman contract law:
(a) “Roman law has a law of contracts, not of contract” (Nicholas 165);
(b) “Any agreement could be made legally effective by being cast in the form of a stipulation”
(Nicholas 166).
2 Discuss the formal requirements for stipulatio in classical Roman law, and indicate how each of these
requirements was watered down over time. In conclusion, comment critically on the following statement:
“In Justinian's law the stipulatio appears as a written act, without any formal requirements” (Berger,
Encyclopedic Dictionary of Roman law s v stipulatio).
3 Critically evaluate the advantages and disadvantages of stipulatio as form of contract in Roman law.
4 Discuss the formal requirements for the stipulatio in classical Roman law in light of the following
quotation from Schulz, Classical Roman Law 6 474:
“The Roman stipulation is entirely a Roman creation and has no parallel in any other system. It is founded on
Roman fides, which with an almost religious sanction binds a man to keep his word, and it shows the true Roman
predilection for accuracy, brevity and simplicity”.
Also show how these formal requirements were later watered down by the Constitutio Antoniniana (212
AD), the Constitutio Leonina (472 AD) and the Constitutio Justiniana (531 AD).
5 Discuss the validity of the following stipulationes in the Roman law:

(a) Maevius: “Seius, do you promise to give me 100 gold pieces?” Seius goes outside to ask a
friend’s advice. He returns shortly thereafter a writes in Greek on a wax tablet that he promises.

20
(b) Maevius: “Seius, do you promise to give me 100 gold pieces?” Seius gets so excited he has to
excuse himself for a minute, but he returns shortly and writes in the sand with a stick: “I
promise!”
3. CONTRACTUS VERBIS & CONTRACTUS LITTERIS (VERBAL AND WRITTEN

CONTRACTS) – Continued (topics 1 – 3.3 dealt with during first semester)
3.4 Field of application of the stipulatio

Recommended: du Plessis, Borkowski’s Textbook on Roman law, 9.4.3.5
Zimmermann, The Law of Obligations, pp. 89-91, 114-152
The field of application of the was extended so considerably that by the classical period it
could be used to make any lawful performance the subject of an obligation. The following
quote by Riccobono-Wylie-Beinart (26/27 note 6a) demonstrates the wide variety of uses
for a stipulatio:
“The stipulation at the height of its development was used in all spheres of life, whether relating
to the family, commerce or judicial procedure ... In sum, any interest of everyday life could by
means of stipulation be vested with legal efficacy and rendered enforceable. If direct enforcement
was not feasible, the prestation could be converted into money, by means of a stipulation, which
would serve as an assessment of the damages, and at the same time provide an amount of a
punitive nature to act as an inducement for performance …(stipulatio poenae). In this way, the
simple and many-sided stipulation served to overcome all gaps in the law of contract”.
Examples of the stipulatio’s used in family law are the agreement of engagement and the
stipulatio for the repayment of the dowry in the event of a divorce. In the sphere of property
law, the stipulatio could in turn be used to establish servitudes over provincial land, to
provide security against the imminent threat of a neighbour’s wall falling onto one’s property,
and to provide security that the holder of a usufruct will diligently look after the subject matter
of the usufruct and return it in substantially the same form. In the law of persons, a guardian
gave security by way of a stipulatio that he would not squander the assets of his ward. With
regard to the stipulationes in procedural law (stipulationes praetoriae), the praetor – in his
capacity as magistratus with jurisdiction – in some cases made one or both of the parties
before him in court swear a stipulatio in favour of the another. The aim of such a stipulatio
was to ensure an expeditious and unproblematic hearing – promises could be made to

21
ensure the appearance of the defendant in court, to guarantee payment of a judgment debt,
and to establish security through a procedural representative that the applicant will not
institute proceedings against the defendant on the same cause of action.
However, for our purposes the most important area of application of the stipulatio was the
law of contract. Here you must study the examples in Borkowski’s Textbook on Roman
Law at 9.4.3.5. The very important stipulatio for suretyship is not adequately dealt with
in the Borkowski’s Textbook, AND YOU SHOULD CONSEQUENTLY STUDY THESE
SUPPLEMENTARY NOTES BELOW.
Suretyship
Suretyship is an agreement whereby one person agrees to be liable to a creditor, should a
third party not fulfil his principal obligation to the creditor. Suretyship agreements could be
established by way of a stipulatio. Since personal surety was even more important to the
Romans than real security, e.g. pledge, the stipulatio played a special role in the Roman
credit system. The characteristics of modern suretyship are:
(i) Suretyship is accessory to the principal debt. This means that the existence and
ambit of the suretyship agreement is inextricably linked to that of the principal
agreement.
(ii) Suretyship is subsidiary to the principal debt. This means that the suretyship
agreement is subordinate to the principal agreement. The principal debt must first
be extinguished, i.e. the principal debtor must first be excussed before the surety
can be held liable. In this regard the surety had the beneficium excussionis, as
explained below.
(iii) Modern suretyship is not subject to any limitations. It may be demanded for any
debt arising from any cause, and liability under a suretyship is further transferred to
the estate of the surety upon his death.
(iv) Where more than one suretyship has been obtained, the debt is divided evenly
between them as soon as one of the sureties is approached by the creditor to settle
the debt (due to the beneficium divisionis, as explained below).
None of these characteristics of the modern suretyship were present in the oldest
Roman forms of suretyship, namely sponsio and fidepromissio. Due to archaic
principles that applied to these older sources of suretyship (e.g. liability could not be
transferred or inherited), they were already replaced in the early classical Roman law with a

22
more modern form of suretyship, namely fideiuissio. Fideiuissio was in turn modernized so
that by the time of Justinian it had the modern characteristics that suretyship has today.
a) Older forms of suretyship: sponsio and fidepromissio (For 2020 you can read through
subsection a as background to our discussion of fideiussio. For test and exam purposes
focus on subsection b – Fideiussio)
The oldest forms of suretyship in the Roman law were sponsio and fidepromissio. In broad
terms, sponsio and fidepromissio refer to any stipulatio in which the verbs “spondere” or
“fidepromittere” (respectively) were used. In a narrower sense, they are accessory
stipulationes through which surety for an identical debt is established. Sponsio originates
from the XII Tables, whereas fidepromissio came into being around 300 BC. Sponsio was
only for use by Roman citizens or cives, while fidepromissio was also available to peregrini
(foreigners). After the surety paid the principal creditor, the sponsor (surety) had a right of
recourse against the principal debtor in the form of the actio depensi (in terms of the Lex
Publilia), while the right of recourse of the fidepromissor took the form of an action based on
administering another’s affairs or negotiorum gestio. Besides theses small differences, the
rules applicable to the two forms of suretyship were the same.
Both the old forms of suretyship came into being through adpromissio. After the principal
creditor stipulated the performance of the principal debtor, he would bring in another person
who promised him the same performance. Accordingly, to have greater security (additional
security), the principal creditor ensured for himself performance of idem debitum (something
exactly the same as the principal debt). For example:
Titius: Maevi, decem mihi dari spondes? (Maevius, do you promise to give me 10?)
Maevius: Spondeo (I promise)
Titius: Sei, eadem mihi dari spondes? (Seius, do you promise to give me the same?)
Seius: Spondeo (I promise)
Two different stipulationes were therefore entered into. There is no continuous act here, and
Seius makes himself liable for Maevius’ debt.
Since two stipulationes were needed to bring sponsio and fidepromissio into being, it
seems to be that these forms of suretyship were not accessory in the Roman law. However,
the matter is rather contentious (see Zimmermann 121-125). A key question here is whether
the principal debt and the debt under the suretyship are so intertwined with regards to their
legal basis (causa) and their aim, that reaching litis contestatio in an action on the principal
debt also “consumed” the liability under the suretyship, and vice versa. If the actions against
the principal debtor and the surety debtor are regarded as one and the same action (with

23
regard to legal basis and aim), the general rule of Roman procedure law ne bis in idem (you
may not institute action on the same cause more than once) will apply. Some Romanists
(Kaser, De Zulueta, Schultz par. 851) are of the opinion that the principal debt and the liability
under the suretyship (each having been established with its own, separate stipulatio) were
not so intertwined that litis contestatio had this “consuming” effect. Other Romanists, like
Zimmermann (The Law of Obligations, pp.125-126) and Thomas, are of the opinion that the
principal debt was so intertwined with the debt under the suretyship that litis contestatio
indeed had such a “consuming” effect.
Liability under sponsio and fidepromissio was not subsidiary. The principal creditor could
choose between holding the principal debtor or the surety liable. Where he chose the surety,
such surety could not rely on the beneficium excussionis, and he had to pay the full debt.
However, after payment the surety did have a right of recourse against the principal debtor
with which to claim back the money paid to the creditor. In the case of sponsio, the Lex
Publilia (adopted between 400 and 300 BC) determined that the surety will use the actio
depensi as his right of recourse against the principal debtor. If the debtor denied the claim,
he was liable for twice the amount (in duplum). The surety under fidepromissio did not have
an actio depensi, but in the classical time such a surety could use an actio mandati (action
based on mandate or instruction) or an actio negotiorum gestorum (action based on the
unauthorized managing or administration of another’s affairs or interests), depending on the
legal relationship between the principal debtor and the surety. These were available to both
the sponsor and the fidepromissor to reclaim the amount paid. Where a creditor claimed
payment from the surety, but the principal debtor was solvent, the principal debtor could
institute the actio iniuriarum against the creditor.
The position of co-sureties, in both the cases of sponsio and fidepromissio, was regulated
by two legislatory rules. In terms of the Lex Appuleia, (Gaius 3 122) a co-surety had a right
of recourse against his co-sureties if he had paid more than his pro rata share of the debt.
According to the above mentioned (or a subsequent later?) Lex Furia, a principal creditor
could only obtain a pro rata portion of the debt from a co-surety, calculated according to the
amount of living co-sureties. The creditor carried the risk of the possible insolvency of the
living co-sureties. If four co-sureties stood surety for a debt of 60, and one was dead and
one was insolvent, then the remaining 2 solvent sureties would only be liable for 20 (60
divided by 3 being 20). To do the calculation, the principal creditor, as has been said, was
compelled by the Lex Cicereia to make the scope of the debt and the number of sureties
known in a public document. Because providing surety was considered to be a duty
(officium) of any good Roman, legislation was enacted to soften the extent of the liability of
24
a Roman standing surety. A Lex Furia (200 BC), which only applied in Italy, limited the
liability of a person standing surety to two years. Also, sponsio and fidepromissio could not
be transferred after the death of the surety, since sponsio was one of the earliest forms of
obligation where the principle of being personally bound still applied.
The old forms of suretyship (sponsio and fidepromissio) disappeared completely in the
post classical period. At this stage they were replaced with the more modern form of
suretyship called fideiussio, which was already known from 100 BC and which catered
more efficiently for the demands of practice. In Justinianic legislation, references to sponsio
and fidepromissio were replaced by references to fideiussio.
b) Fideiussio
Fideiussio, like its forerunners, is created by way of a stipulatio, but it is otherwise quite
different. Fideiussio came into being in the following way:
Titius: Maevi, decem mihi dari spondes? (Maevius, do you promise on your word of honour that
you will give me 10?)
Maevius: Spondeo. (On my word of honour, I promise.)
Titius: Sei, quod Maevius mihi debet, id fide tua esse iubes? (Seius, do you promise on your word
of honour to pay me that which Maevius owes me?)
Seius: Fideiubeo. (On my word of honour, I promise.)
(Fideiubeo means: iubeo debitum fide mea esse – “I wish that the debt should rest on (or be
supported by) my fides” - Schulz par 859).
The fideiussor does not promise exactly the same as the principal debtor, but he takes
on the responsibility of seeing to it that the debtor fulfils his obligatio. Note that unlike
sponsio, this obligatio did not have to flow from a stipulatio – even a delictual obligation could
be secured by fideiussio.
Although the position is somewhat contentious, we seem to be dealing with an accessory
obligation in the case of fideiussio. The surety is only bound where a principal debt existed.
Any defence arising out of a defect in the principal debt (e.g. dolus or metus) that could be
raised by the principal debtor, was also available to the surety (fideiussor). Where the
principal debtor had personal defences, these were not, however, available to the surety.
Should the principal debtor be released in any way from his liability, the surety would also
be freed.
Fideiussio, unlike the older forms of surety, was not subject to limiting legislation like
the Lex Furia and the Lex Cicereia. Furthermore, at the death of the fideiussor his liability

25
passed to his heirs. Being a more modern form of suretyship, the principle of privity of
contract (being personally bound) did not apply to fideiussio.
In the classical time, the fideiussor was not held liable after the principal debtor, but
together with such a debtor. In other words, liability was not subsidiary, but “solidary”.
Before litis contestatio, the principal creditor could therefore choose whom he wanted to hold
liable. But he had to be careful. According to the popular view, the obligations of the principal
and the surety were so intertwined that litis contestatio against the one meant that the debt
of the other was “consumed”. A wrong choice would therefore have resulted in the debt not
being recoverable. Furthermore, should the creditor have had no ground for first holding the
surety liable, the creditor could be exposed to the actio iniuriarum, based on a violation of
the reputation of the creditor through implying that he cannot pay his debts.
Where a surety was duly held liable, he had to be satisfied with a right of recourse
against the principal debtor (by way of an actio mandati or an actio negotiorum gestorum,
depending on the legal relationship between the principal debtor and the surety), which
would yield virtually nothing should the debtor not be able to pay. Because liability was not
subsidiary, a surety could not insist that the principal debtor be excussed or “shaken out”
first.
Justinian abolished the consuming effect of litis contestatio, which meant that both the
principal debtor and the surety were only released from the debt upon full repayment of it.
Thereafter, he imported the “defence of excussion” or beneficium excussionis for the
benefit of the fideiussor. This meant that where the surety was held liable by the principal
creditor, the surety could force the creditor first to claim all he could from the principal debtor,
before the surety would be held liable for any residual amount. If the fideiussor settled the
debt without making it expressly clear to the praetor that the beneficium excussionis should
form part of the creditor’s action, he had to fall back on his right of recourse (as ineffective
as this may be) against the debtor in the form of the actio mandati or actio negotiorum gestio.
Lastly, Justinian also provided the fideiussor with a beneficium cedendarum actionum.
This defence, which was only applied sporadically in classical Roman law, was elevated to
general application by Justinian. In terms of this defence, a fideiussor could, if held liable
and forced to pay the debt, demand of the creditor that the principal debt be transferred to
him (the fideiussor), along with any security (perhaps in the form of a pledge) that attached
to the principal debt (Novella 4 1). Because payment of the debt to the creditor by the surety
would officially extinguish the debt (being equal to performance of the obligation), and
because cession of actions (due to privity of contract of classical obligations) was not
allowed, the above legal act between the creditor and the fideiussor (surety) was construed
26
as a forced sale. In terms of this construction, the creditor “sold” his actions attaching to the
debt to the surety, the “price” of the actions being the amount of the debt, as paid by the
surety. Accordingly, if the surety exercised his beneficium cedendarum actionum, he could
eventually institute action based on the principal debt and the security rights attaching to it,
against the principal debtor and/or co-sureties.
In the case of the principal debt being insured by more than one fideiussor
(confideiussores), each fideiussor, since an epistula of Emperor Hadrian (117-138 BC) had
the beneficium divisionis, or privilege of division of the debt: if a co-surety was held liable
for the debt by the principal creditor, he could raise the beneficium divisionis and in this way
force the creditor to divide the debt between the co-sureties that were solvent at the time of
litis contestatio. Remember that liability passed to the heirs (see above). Accordingly, the
deceased co-sureties were still taken into account when determining each co-sureties’ pro
rata portion.
Where one of the sureties neglected to rely on the beneficium divisionis and paid the
entire debt, but relied on the beneficium cedendarum actionum, he could still in the post-
classical period hold his co-sureties liable due to the “cession” (artificial sale) of the debt and
the attaching securities. Otherwise, if one of the co-sureties had already paid the debt, he
would only be able to rely on some kind of legal relationship (like a partnership, mandate or
managing another’s affairs) between the co-sureties.
Suretyship is a form of intercessio, which is a legal act whereby someone accepts
responsibility for a debt which economically is not his own. Other examples are novation
(novatio) with an exchange of parties, and the pledge of your own possessions for the debt
of another. Rules applicable to intercessio will then also be applicable to all forms of
suretyship including suretyship ex stipulatione, praetorian suretyship (constitutum debiti)
and mandate suretyship (mandatum pecuniae credendae). The senatus consultum
Vellaeanum (46 AD) prohibited intercessio by women. The reason for this was that it was
considered improper for a woman to take part in commercial activities:
D 16 1 2 1 Cum eas virilibus officiis fungi et eius generis obligationibus obstingi non sit aequum
(Since it is not fair that they perform male duties and are bound by obligations of this kind).
A post classical note (glossa) gave the following reason:

D 16 1 2 2 quia opem tulit mulieribus propter sexus inbellicitatem multis huiusmodi casibus
suppositis atque objectis (because it [the senatus consultum] brought help to women, seduced
and deceived in many cases of this kind on account of the weakness of their sex).

27
Intercessio by women was not invalid iure civile (in terms of the ius civile). But if a woman
was held liable on the grounds of intercessio, she could defend herself by relying on an
exceptio based on the senatus consultum Vellaeanum. Under Justinian, intercessio by
women could be valid, but only if entered into with an instrumentum publice confectum (a
document sealed by three witnesses). An intercessio by a woman for the benefit of her
spouse was, however, always void – confirmed by the adoption of the Authentica si qua
mulier (Novella 134 8).
The exceptio senatus consulti Vellaeanum and the Authentica si qua mulier was
abolished by the Suretyship Amendment Act 57 of 1971. Accordingly, in South African
law, a woman is no longer protected merely by virtue of her gender should she stand surety
for her husband or anyone else. Even before the Suretyship Act, women often stood surety
in practice, but with a waiver of the above protection of the two above-mentioned legislative
rules. Exploitation of weaker parties in many legal relationships and otherwise is still a
common occurrence, and the need for legal mechanisms to protect these parties is still
great.
3.5 Invalid Stipulationes
In the classical times it was invalid for one person to conclude a stipulatio whereby another
would receive something upon his death. The reason for this is as follows:
Gaius 3 100: nam inelegans visum est ab heredis persona incipere obligationem
(because it seemed inappropriate that the obligation that arose became the obligation of the
successor/beneficiary).
The real reason why this kind of stipulatio was considered invalid, was the principle of the
personal bond (vinculum facti - persona obligata) or “privity of contract” according to which
only the persons who were party to the agreement could be party to the obligations arising
out of the agreement (the successor/beneficiary is not a party to the agreement, and
accordingly cannot derive rights or obligations from the agreement).
In practice, however, a need existed for a stipulatio post mortem, due to the desire to
cater for family and friends upon a person’s death (see the trust mortis causa). The Romans
jurists therefore tried to circumvent the invalidity of the stipulatio post mortem. The following
construction was unacceptable:
Pridie quam moriar dari spondesne?

28
Do you promise to give on the day before I die?
The argument was that the person would first have to die before it would be possible to
determine the day before his death. The subsequent construction was, however, accepted:
Cum moriar, cum morieris dari spondesne?
Do you promise to give when I/you die?
The argument here was that the obligation came into being between the original parties at
the last moment of the party in question’s life.
Justinian avoided these nice distinctions by declaring all stipulationes post mortem legally
valid.
3.6 Written contracts (contractus litteris)

Recommended: du Plessis, Borkowski’s Textbook on Roman Law, 9.6

29
REVISION 3: CONTRACTUS VERBIS ET LITTERIS
SHORT QUESTIONS
4 Name 3 instances where the stipulatio was used to create obligations.
5 Name the remedies flowing from the stipulatio.
6 Name the Roman predecessors of our modern shipping law and penalty clause.
7 Name 2 differences between sponsio and fidepromissio.
8 Distinguish briefly between the following:
beneficium excussionis
beneficium cedendarum actionum
beneficium divisionis
9 Briefly show how Roman jurists tried to circumvent the prohibition on stipulationes post mortem
(stipulationes after death).

6 “The law of Rome never developed a true form of assignment (cession) or delegation.” Is this statement
correct? Motivate your answer and explain shortly how cession and delegation were achieved in the
classical Roman law.
7 Aulus, Balbus, Cassius, Decius and Sylvia undertake, by way of a stipulatio, to stand surety for the
principal debt between Ennius (principal debtor) and Furius (principal creditor). At the moment Furius
claimed payment from Aulus, Cassius was already dead and Decius was insolvent. Discuss the legal
position of Aulus and Sylvia where the suretyship was cast in the form of (a) a sponsio and (b) fideiussio
(in both classical and Justinianic law).
8 A sells the Cornelian estate to B. The purchase price is 300, the time about 200 AD. B cannot pay the
price at the moment. Accordingly, B's friend, C, acts as surety.
(a) What does C have to do?
(b) Can A immediately sue C should the debt fall due?
(c) A sues B. B, however, turns out to be insolvent. Can A proceed against C?
(d) C has paid the purchase price of 300. Can he obtain reimbursement?
(e) Besides C, also D, E, F and G have stood surety. F has, in the meantime, disappeared and G
has become insolvent.

30
(i) Does C have to pay the full debt or only a share (if so, how much) when asked by A to do
so?
(ii) What are C's rights of recourse (if any) once he has paid the 300?
9 It is the classical period. Aulus wants to loan 100 sestercii to Balbus, but also wants Cassius to stand
surety.
(a) Name the types of contract that could be used to create the loan as well as the types of contract
that could be used to ensure that Cassius stand surety for the loan.
(b) Discuss the consequences if Aulus claimed payment from Balbus and litis contestatio (a specific
phase in legal proceedings) had been reached.
(c) Discuss the consequences if Aulus should decide to claim payment from Cassius first.
(d) Would for Aulus also be able to conclude a valid agreement with Balbus that Balbus should pay
interest on the loan? If so, how?
10 Discuss the validity of the following stipulationes and any rules that would have been applicable to it in
the different periods of Roman law:
(a) Maevius: “Seius, do you promise to give Titius 100 gold pieces?”
Seius: “I promise.”
(b) Maevius: “Seius, do you promise to give Titius and me 100 gold pieces?”
Seius: “I promise.”
(c) Maevius: “Seius, do you promise to pay my funeral costs when I die due to the murder of
Balbus?” Seius, who is mute, goes outside and orders his friend Caelius to go back inside in
his place and to nod in confirmation of the question just asked.
11 Explain shortly how written contracts played a relatively small role in Roman law.
-----------------------

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4. CONTRACTUS RE (REAL CONTRACTS)
4.1 Introduction
Recommended: du Plessis, Borkowski’s Textbook on Roman law, 9.5
* In die context of contractus re it is important to bear in mind the duties of care resting on
the respective parties. A duty of care determines when a party is liable for damage to or
caused by the thing forming the object of the transaction (cf Nicholas 170-171). The duty of
care plays a role with regards to all types of contract, but it is convenient to discuss it here.
The principle of utility (Utilitätsgedanke) determines the duty of care resting on the
respective parties. According to this principle the degree of care required of a party is
influenced by the degree of benefit that a party derives from the transaction accordingly the
higher the level of benefit received the higher the level of care required.
The classical jurists probably distinguished between three levels of care namely dolus,
culpa and custodia. In case of dolus a party will only be held liable for damage cause to
or by the object of the contract if such damage is caused with intent. A duty of care of culpa
will still encompass dolus but liability is extended to damage negligently caused. The highest
level of care was custodia. Custodia implied that the party bearing the duty of care was held
liable for any damage except that caused by vis maior (acts of god). Vis maior includes
inter alia damage caused by natural disasters or a band of robbers, accordingly damage
that could not be prevented (regarding this complex issue see Zimmermann 192-200;
Kaser/Knütel, Römisches Privatrecht 17th edition, § 39 II).
Culpa (negligence) is subdivided into culpa lata and culpa levis. In its turn culpa levis
is divided into culpa levis in abstracto and culpa levis in concreto. Culpa lata
encompasses both dolus and gross negligence. In addition to dolus and gross negligence
culpa levis in abstracto includes liability for damages that a bonus paterfamilias
(reasonable man) would have foreseen and avoided. In case of culpa levis in concreto a
party’s actions are measured not against the objective standard of the reasonable man, but
against a subjective standard – the care that the particular party would normally display with
regards to his own things. Accordingly, a duty of culpa levis in concreto includes liability for
damage resulting from dolus, gross negligence and that the particular party normally would
have foreseen and avoided. Depending on the individual in question this standard can either
be stricter or lighter than culpa levis in abstracto.
Regardless of the degree of care normally required, a party could, in exceptional
circumstances, acquire liability for all damages, even if such damage results from vis maior.
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This would be the case where a party is in mora (failure to perform) or where furtum usus
(theft of use) occurred.
4.2 Mutuum (loan for consumption)

Recommended: du Plessis, Borkowski’s Textbook on Roman Law, 9.5.1
* In the classical period, the transfer of money was essential to conclude a loan of money.
It was, however, not always practical to have this requirement. In the late classical law, a
form of money loan based on consensus was recognized. In this case, the parties agreed
that an amount of money that was previously owed due to another legal causa, for example
a contract of sale, would in future be owed to the creditor as a money loan.
D 12 1 15 (Ulpian): There are certain special rules which have been adopted with reference to
money loaned; for if I order a debtor of mine to pay you money you will become responsible to
me even though the money which you receive was not mine. Therefore this rule being established
with reference to two persons, it must also be observed where there is but one; so that, where
you owe the money on account of a mandate, and it is agreed between us that you shall retain it
as a loan, it is held that the money was paid to me and transferred from me to you.
The so-called contractus mohatrae is related to this kind of construction. Here, the person
wanting money acquires a thing instead of money, with a view to selling the thing in order to
keep the proceeds of the sale as a loan.
D 12 1 11 pr (Ulpian): Where you asked me to lend you money, and as I did not have it at the
time, I gave you a dish or a lump of gold for you to sell and to make use of the proceeds; and
you sold it, I think that the money received for it constitutes a loan. But if, before you sold the dish
or the lump of gold, you lost it through no negligence on your part, the question arises whether
the loss falls upon me or upon you. It is my opinion that the distinction made by Nerva is perfectly
correct, who thinks that it makes a great difference whether I had the dish or the lump of gold for
sale or not, and if I had it, I must bear the loss just as if I had given it to someone else to be sold;
but if it was not my intention to sell it, but the only object of the sale was that you might make use
of the proceeds, you must be responsible for the loss especially if I lent it to you without interest.
* The following notes set out the position regarding the drawing of interest on mutuum.
Generally, no interest could be claimed on a loan in the form of a mutuum, because the
borrower could only be held liable for the exact amount that he received. This economically

33
incomprehensible concept of a loan without interest can also be found in the Hebrew, Islamic
and Canon law of the middle ages. The grounds of justification for loans without interest
most probably lie in the fact that money loans in the Roman times existed primarily for
helping friends, and not for commercial or business reasons. A mere nudum pactum for the
payment of interest was not enforceable. Any obligation to pay interest could only be created
with a stipulatio, and since the stipulatio was now added in any case, it often happened
that the repayment of the capital amount was also promised by way of stipulatio.
Gradually, in certain exceptional cases, an agreement to pay interest added to mutuum
was recognized as valid. This happened in the case of the lending of things other than
money (for example, cutlery), in the case of faenus nauticum, and in the case of money
loans by bankers. Because mutuum, like stipulatio, was a negotium stricti iuris, mutuum
could further never give rise to an obligation to pay moratory interest (i.e. interest based on
failure to perform on time).
4.3 Commodatum (loan for use)

* The duty of care that rested on the borrower was probably custodia. In classical law, the
borrower, who benefited most from the transaction, was not only held liable for negligence
or culpa, but also for certain typical accidents, excluding unavoidable circumstances (vis
maior). An example of where custodia liability was imposed is theft where there was no fault
on the side of the borrower. However, robbery, which was totally unavoidable, was excluded.
Because it was in the interest of the borrower that the res given on loan for use should not
be stolen, the borrower had the actio furti (the action based on theft) for damages against
the thief. The lender did not have this action since he could claim damages with an actio
commodati on the basis of the contract (commodatum) with the borrower. But if the borrower
was insolvent, and therefore incapable of compensating the lender, the lender had an actio
furti against the thief.
D 13 6 18 pr Gaius in fine: “[B]ut if it was done for the benefit of both parties, for example, where
we invited a common friend to supper and you take it upon yourself to manage the affair and I
lend you the plate, I am aware that certain authorities hold that you are only responsible for bad
faith (dolus), but it should be considered whether you are not also liable for negligence (culpa),

34
for the determination of negligence is ordinarily made on the same principle as where property is
given in pledge ...”
* With regard to the duties of the lender see 9.5.2.2. in Borkowski’s Textbook on Roman
Law. If the lender also derived a benefit from the loan, he was probably not only responsible
for dolus (i.e. conscious knowledge of a damage-causing defect), but also for culpa
(negligence) (cf Thomas 276). Accordingly, he will be liable if, as a reasonable man, he
should have known that the res was defective in such a way that the defect could cause
damage.
4.4 Depositum (bailment; deposit)

Supplementary:
Note that an action for interest could be added in the case of a depositum irregulare (see
Borkowski’s Textbook 9.5.3.4). This made it a very popular contract form amongst bankers.
Consider whether a deposit at a bank is really the same as a depositum contract in the
Roman law, as well as what the legal nature is of a savings account and a cheque account
at a modern bank.
4.5 Pignus (Pledge)

* According to Borkowski’s Textbook on Roman Law, the standard of care required of the
pledgor (debtor) was that of the bonus paterfamilias (culpa levis in abstracto). This means
that the pledgor would be liable for any losses that occurred due to a defect in the object of
the pledge which he ought to have known about. Some writers are of the opinion that the
duty of care required was merely dolus, accordingly the pledgor would only be liable for
losses that occurred due to a defect that he did indeed know about. Although damages could
be recovered with an action based on dolus, one should keep in mind that the pledgor could
be held liable for damages sustained by the pledgee (creditor) due to the fact that the object
of the pledge did not really belong to the pledgor, regardless of whether the pledgor was

35
aware of his defective title. In this context, the scope of his liability is wider than merely dolus
(see generally Zimmermann 227-228).
4.6 Contractus re innominati


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REVISION: 4. CONTRACTUS RE
SHORT QUESTIONS
1 Name three contracts that gave rise to imperfectly reciprocal obligations.
2 Name three different manifestations of depositum (deposit, bailment), and in each case indicate the
position of the receiver of the res in terms of the Roman law of things.
3 Name the contractus re and in each case indicate the position of the receiver of the res in terms of the
Roman law of things.

1 Distinguish between (a) dolus, (b) culpa, and (c) custodia.
2 Comment critically on the following statement by Nicholas concerning contractus re nominati: “These
contracts are less important than their prominence in the Institutional classification suggests” (An
Introduction to Roman law pp. 169). Thereafter, distinguish between mutuum, commodatum and
depositum with regard to:
(a) their origin;
(b) the object of the contractus;
(c) the position of the receiver of the res in terms of Roman property law;
(d) the duties of the parties in terms of the contract.
3 Roscius lends Sestius a chariot and 1000 sesterces for six months. At the end of the period, Sestius
tells Roscius that the chariot was destroyed in a fire in his house and that, as his (Sestius’s) paterfamilias
is still alive, he does not have to repay Roscius the 1000 sesterces. Discuss the legal position of all the
parties.
4 Roscius borrows a chariot from Sestius saying that he wishes to go to Naples on business. In fact he
sets off for a race meeting at Ostia. The chariot is damaged in a collision near Ostia. Discuss the legal
position of both parties.
5 Aulus and Balbus agree that Balbus will look after Aulus’s mare for a month, and the mare is placed in
the care of Balbus. The mare gives birth to a colt at the beginning of the month. Due to the birth, the
mare falls ill and Balbus has to medicate the mare with herbs. After the mare recovered, Balbus uses
her as a riding horse to visit his friends in Capua. Upon his return, the mare gets out of hand and kicks
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the stable boy (a slave) so hard that he loses his leg. Before the end of the month, a thief comes quietly
in the night and steals the colt, which was kept in a stable.
i) Discuss the legal position of the parties comprehensively.
ii) How would the position differ if the mare was given to Balbus on loan for use?
iii) Motivate what kind of contractus will be at hand if Balbus and Aulus agree that Balbus would
look after the mare for a month (a) for free; (b) for 100 aurei; (c) in exchange for the slave
Stichus.
6 What is the difference between mutuum and depositum irregulare? Comment critically on the following
statement: “A so-called deposit with a bank is not a deposit but a loan”.
7 “Only with the development of the concept of the innominate contract in later law, did Roman law
approach anything like a general concept of contract” (Thomas 215). Evaluate critically.
8 Comment critically on the following statement: “the name contractus re innominati is inappropriate
because the types of contract which belong to this group are neither re nor innominati”.
9 Ennius agrees with Furius that he will build Furius a swimming pool in exchange for a slave. After Ennius
has built the pool, Furius refuses to hand over the slave. Advise Ennius.
10 Consider the following situations and discuss the legal consequences:

Ennius agrees to let Oppius have the use of a pair of horses for a week:
i) for whatever sum may be fixed by Rullus as fair and reasonable;
ii) if Oppius repairs his (Ennius’s) fence;
iii) in return for 12 amphorae of wine which Oppius gives him at the time of the agreement.

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5. CONTRACTUS EX CONSENSU: LOCATIO CONDUCTIO, SOCIETAS &
MANDATUM (CONSENSUAL CONTRACTS: LETTING & HIRING, PARTNERSHIP & MANDATE –
the contract of sale (emptio venditio) also falls under contractus ex consensu but since we will be
covering this topic in more detail than the other consensual contracts it will be dealt with in a separate
set of additional notes.)
5.1 Introduction
Zimmermann, The Law of Obligations, pp. 32, 230
* The earliest contractus ex consensu was most likely the sales contract (emptio venditio)
which was well known from about 200 BC; the latest was probably mandatum. Still, some of
these contracts had archaic predecessors in the time of the XII Tables. For example, emptio
venditio was partially based on the archaic transfer act of mancipatio, and societas could be
traced back to the ancient family partnership (consortium familiare, societas ercto non cito)
The consensual contracts were all negotia bonae fidei, where reciprocal duties between
the parties were determined by the bona fides. They were all bilateral legal acts, and all of
them except mandatum gave rise to a perfectly reciprocal obligation. Rights as well as duties
accrued to both parties in any case. Mandatum gave rise to an imperfectly reciprocal
obligation. Even though they were regarded as “modern” contracts, some of them (due to
the influence of their predecessors) still had archaic rules. Examples of this are the
subordinate social position of the lessee and the employee in the context of the hiring of
things (locatio conductio rei) and the service contract (locatio conductio operarum).
In this part of the course we shall deal with locatio conductio (lease), societas
(partnership) and mandatum (mandate). Emptio venditio (the contract of sale) will be dealt
with extensively in the second semester.
5.2 Locatio Conductio (letting and hiring)

5.2.1. General

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* Note that in Roman law, lease was a bilateral/reciprocal bonae fidei agreement, in terms
of which the lessor (locator) let a thing (res), his services (operae) or a piece of work (opus)
to another person for consideration (payment in some from – merces, pensio or canon). As
a negotium bonae fidei, the duties of the parties were determined according to the bona
fides. The actions of the parties were the actio locati and actio conducti.
5.2.2 Locatio conductio rei (letting and hiring of a thing)

Zimmermann, The Law of Obligations, 351-383
5.2.3 Locatio conductio operarum (letting and hiring of services)

5.2.4 Locatio conductio operis (letting & hiring of a piece of work)

* In the Borkowski’s Textbook on Roman Law at 9.3.2.3 it is indicated that the lessee or
conductor was liable for culpa. Note, however, that being unskilled or incompetent was
regarded as being (automatically) negligent (imperitia culpae adnumeratur), with the effect
that the liability was, in many cases custodia, rather than culpa. Gaius asserts, for example,
that the cleaner of clothes (fullo) and the repairer of clothes (sarcinator) will also be
responsible for things that were placed in their care, whether they themselves were at fault
or not (Institutes, 3.205). Where, for example, the garments were stolen, the cleaner or
repairer will be liable even if they were not personally negligent. There are also indications
that a locator was more strictly liable for damage caused to the res by persons under the
locator’s control.
D 19 2 25 7: A man undertook (as a job) to transport a column. If it broke while being lifted or
carried or repositioned, he is held responsible for the risk if this happens due to his own fault or
that of those whose labour he employs; but there is no fault if all precautions were taken which a
very careful person would have observed.
5.3 Societas (partnership)

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* Although economic gain was often the aim of a partnership agreement, it was not
necessary that the aim of partners always had to be financial (pecuniary), or their sole
intention to make a profit (see Thomas, Textbook of Roman law, 300; Jolowicz, Historical
Introduction to Roman law, 305). The important thing is that the partners should have mutual
interests that have to be pursued. The aim could even be to share the expenses of a trip.
In this regard the Roman idea of partnership differs from the modern idea of partners in
certain systems.
* As for the importance of societas today, consider the following quotation from Schulz,
Classical Roman law, 553:
“In this survey of the classical law of partnership its individualistic and liberalistic character is
evident; the characteristically Roman aversion to associations is visible throughout. The contract
entails only a minimum of obligation and the law is always anxious to preserve the freedom of the
individual. Its character was not essentially altered in post-classical law. The modern German
forms of commercial and industrial partnership have not been developed on the basis of Roman
law, which, if compared with those modern forms, appears an interesting but archaic institution”.
5.4 Mandatum (mandate)

* According to Borkowski’s Textbook on Roman Law (9.3.3.1), mandate had to be in the
interest of the mandator or a third party. It could not solely be in the interest of the mandatee.
However, where A instructed B to lend his money to C, the view of Servius was that the
instruction did not create any obligations, whereas Sabinus thought that it did, since the third
party, C, (also) had an interest in the mandate. This led to a useful form of suretyship. If A
gave a mandate to B to lend money to C, and C did not pay the loan, B could claim damages
due to C’s non-payment from A. In reality, A acted as surety for C. This was the so-called
mandatum pecuniae credendae or mandatum qualificatum.
Gaius Institute 3 156: For if I give you a mandate only on your own behalf (nam si tua gratia tibi
mandem), the mandate is superfluous, because anything that you have to do on your own behalf
41
you should do on your own judgment, and not under a mandate from me. Accordingly, if I urge
you to put out at interest money that you have lying idle at home, then, even though you lend it to
someone from whom you are unable to recover it, you will not have the actio mandati against me.
Again, if I urge you to buy something, then, even though you had better not have bought it, I shall
not be liable to you in mandate. This principle is carried so far that it is questioned whether one
who tells you to lend at interest to a particular person (Titius) is liable in mandate. Servius said
not, there being no more an obligation in this case than where general advice is given to a man
to put out his money on interest. But we follow Sabinus’ contrary opinion, because you would not
have lent to the particular person if you had not received a mandate.
In practice, the following differences existed between mandate surety and the other
forms of surety:
(i) In the case of surety by way of mandate, the creditor first had to claim from the
debtor and prove that he sustained loss before he could claim from the mandator
(i.e. the person who gave him the mandate). Accordingly, mandate surety had a
built in beneficium excussionis.
(ii) In the case of surety by way of the mandate, the creditor who was tardy in claiming
from the debtor could in the appropriate circumstances be regarded as acting
against the bona fides. Such a creditor would then lose his actio mandati contraria
against the mandator (surety). In the case of fideiussio, the creditor never loses his
right to claim from either the surety or the principal debtor.
(iii) In the case of surety by way of mandate, the creditor who claimed from the debtor
with the condictio certae creditae pecuniae on the basis of the loan (mutuum)
retained his separate action, the actio mandati contraria, against the mandator. In
the case of fideiussio, litis contestatio against the principal debtor could result in the
action against the surety being extinguished.
(iv) In the case of surety by way of mandate, the mandator is entitled to claim the entire
proceeds of the mandate (including actions) from the mandate creditor with his actio
mandati directa. In the case of fideiussio, this was only possible after the beneficium
cedendarum actionum was made available to the surety. Accordingly, mandate
surety also contained a built in beneficium cedendarum actionum.
* Mandate, cession and agency

Due to the personal nature of the Roman obligatio, persons who were not themselves party
to the agreement could not be party to the obligation that sprung from the agreement, i.e.
the rights and duties that sprung from the contract. This principle is also reflected in the
42
English law doctrine of privity of contract which provides that a person who is not privy to
the contract cannot obtain rights and duties from it. The personal nature of Roman law meant
that it did not recognize the modern legal concepts of (i) cession, (ii) representation or (iii) a
contract for the benefit of a third person (stipulatio alteri).
(i) Cession is the transfer of a right to performance. In the case of modern cession, A cedes
the right that he obtained from an agreement with B to a third party (the new creditor). This
has the effect that the third party (even though he was not a party to the contract) can now
exercise the right against B. A, for example, lends 1 000 to B and cedes the right to claim
the money back to C. C now has the right to claim the 1 000 directly from B. In the case of
cession in the Roman law something similar to cession could be achieved with novatio inter
extraneas personas (novation between different persons). Novation was, however, not a
transfer of the claim because the obligation between the creditor and the debtor became
extinguished and a new obligation came into being between the debtor and the third party.
This so-called novation was, however, not possible if the debtor did not want to give his co-
operation, and upon novation all accessory rights (like pledge) were extinguished. For this
reason, the Roman practice was looking for a mechanism that would allow for the debt and
the accessory right to vest in the third party (cessionary). The solution was found in
appointing representatives that were allowed to act in the interest of absent persons. Formal
cognitors or informal procurators were appointed for these absent persons. Where a creditor
wanted to transfer his right to performance, he would appoint the third as a procurator (or
cognitor). The procurator then acted in the name of the actual creditor. While the intentio
contained the name of the creditor, the condemnatio referred to the procurator:
“If it appears that the debtor (B) owes A, condemn the debtor to paying C.”
This means that the performance right of the creditor had to be proven, but the judgment
was in favour of the procurator. In such a case, we are dealing with a procuratio in rem
suam. However, this mechanism did not affect a proper cession in classical law, because
a) the debtor could still perform towards the original creditor who mandated the procurator;
b) the original creditor could terminate the mandate, and c) the mandate automatically
terminated upon the death of either of the parties. Justinian improved this position greatly
by allowing the cessionary an actio utilis in his own name against the debtor in the event of
death or revocation. If notice of the cession was given to the debtor (denuntiatio), the debtor
could no longer pay the original creditor who gave the mandate. This led to effective cession.
An adjusted procuratio in rem suam was the historical predecessor of modern cession.
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(ii) In the case of modern direct representation (agency) a principal (P) authorizes a
representative (R) to perform a legal act (e.g. a contract) on behalf of P with a third person
(D). Where R then enters into an agreement with D on behalf of P, R disappears form the
picture completely upon the conclusion of the contract (and accordingly obtains no rights or
duties in terms of the contract), while the reciprocal obligation is exclusively between P and
D. In the case of both cession and representation, the concept of privity of contract is
disregarded.
The mandatum of the Roman law, in turn, gave rise to a form of indirect
representation. P orders R to buy P a villa from D. R concludes a contract of sale with D,
after they agree about the villa and the price. This contract only gives rise to rights and duties
between R and D. R can now, in terms of the contract of sale (actio empti), claim that the
villa should be transferred to him. After the villa is transferred to R, P can claim, in terms of
the mandate (with his actio mandati directa), that the proceeds (the villa) from the mandate
should be transferred to P. Accordingly, by the use of multiple actions (actio empti and the
actio mandati) the same effect could be achieved as with modern representation.
Because the mandatee in the case of mandatum could not acquire rights and duties
directly for the mandator, mandatum was of very little commercial use and importance. In
practice, subordinate persons like slaves and young boys in a household (subiecti) were
mostly used to perform contracts and other legal acts for the master (dominus) or
paterfamilias. In order to protect the third parties with which these subordinates concluded
agreements, certain actions of an additional nature (actiones adiecticiae qualitatis) were
granted (see Borkowski’s Textbook 9.3.3.4). The most important action in this regard was
the actio institoria in terms of which the paterfamilias or dominus could additionally be held
liable for agreements concluded by his general business manager (instititor). In the late
classical law, Papinian extended the application of this action to all cases where a free
person concluded a single agreement for his principal with the granting of an actio ad
exemplum institoriae. Even this action lead merely to an imperfect form of representation,
because even though the third party acquired an action against the “principal” (mandator)
due to a legal act performed by the “representative” (mandatee), the principal still did not
acquire an action against the third party. Furthermore, the third party could still claim from
the “representative” (mandatee). The mandatee will then have recourse against the principal
(mandator) with the actio mandati contraria, which provided cold comfort when the principal
was insolvent.

44
In the modern law we distinguish between authorization to act on behalf of someone else,
and the legal relationship that gives rise to one person acting on behalf of another
(mandatum). While mandatum deals with the internal relationship between the principal and
his agent, authorization determines the external relationship between the principal and the
third party with whom the contract is concluded.

45
REVISION 5: CONTRACTUS CONSENSU
SHORT QUESTIONS
1 Name three contractus of the classical Roman law that gave rise to perfectly reciprocal obligations.
2 Name only the specific Roman characteristic that formed the basis of each of the following:
(i) stipulatio
(ii) societas
(iii) mandatum
3 Name the historical predecessors of the following:

(i) the modern concept of cession.
(ii) locatio conductio operarum
(iii) the modern principle that partners should treat one another like brothers
(iv) the modern principle that a partner may not only share in the losses of the partnership

1 Distinguish between locatio conductio operarum and locatio conductio operis and comment critically on
the following statement by Schulz, Classical Roman Law p. 525: “The law of hire is ill suited to social
needs and rather poor ...”
2 Explain the following concepts in connection with locatio conductio: inquilinus, coloniaria partiaria,
remissio mercedis, and artes illiberales
3 Aulus lets his wine farm and 100 wine barrels to Balbus. A thief comes quietly in the night and steals 50
barrels. The next morning there is a flood and the remaining 50 barrels are washed into the ocean. Also,
due to continuous rain the grape harvest fails. In the meantime Aulus sells the farm to Cassius. Discuss
the legal position of the parties fully.
4 Aulus and Balbus agree that Aulus may borrow Balbus’s expensive and rare manuscript of one of
Quintus Mucius Scaevola’s works, and that he may have it copied. Aulus approaches Cassius, who is
willing to copy the manuscript under the supervision of Aulus. Aulus also undertakes to supply the ink
and the quills for the copying process. While Cassius is busy copying the manuscript, one of the quills
is quietly stolen by a thief in the night. Cassius continues copying with the remaining quills, but shortly

46
afterwards develops an infection in his right hand which makes it impossible to copy any further, and he
incurs medical costs. Cassius alleges that the infection is due to a poisonous substance given off by the
ink, while Aulus asserts that it is due to the unskilled manner in which Cassius performs his work. Aulus
also asserts that the way in which the copying was has rendered the quills useless. In the meantime, a
lightning bolt causes a big fire, and the precious work of Quintus Mucius Scaevola perishes.
(a) Discuss the position of the parties if Cassius undertook to do the work (i) for free (ii) for payment of
a weekly wage.
(b) What would the position be if Aulus and Balbus agreed that Aulus would look after the manuscript
for 6 months?
(c) What would the position be if Aulus, Balbus and Cassius agreed that Balbus would supply the
manuscript, Cassius would copy it and Aulus would sell the copy and the three would then divide the
profits of the sale amongst themselves?
5 Titius enters into an agreement with Ulpius, a goldsmith, that Ulpius shall fashion a ring out of gold
provided by Titius at a cost of 50 solidi. It is further understood that, if he prefers to do so, Ulpius may
use his own gold instead.
6 Comment on the following statements in connection with societas

“Roman societas was dominated by the ideal of fraternal equality”.
“The law of partnership is impaired by its extreme individualism ...”
7 Gaius, a partner in a societas onmium bonorum invests his money with a moneylender at a very high
interest rate. Just before the annual interest is paid to him, he notifies his partners that he is ending the
partnership. The moneylender becomes insolvent and Gaius’s godfather dies unexpectedly during a
chariot race and leaves Gaius 100 000 sestertii. In the meantime, Gaius finds out that one of his former
partners won 50 000 sestertii during the same race. Discuss the legal position and comment also on the
nature of the loan transaction between Gaius and the moneylender.
8 Sabinus, who has an excellent fishing boat, and Titius who is a skilled fisherman, agree to pool their
resources and to start a fishing business. Because Titius does not want to bear any risks, it is agreed
that he will only share in the profits of the business, and not the losses. After the business is well under
way, Titius hires Ulpius to help catch the fish, under Titius’s supervision. Due to Ulpius’s lack of skill,
they lose a portion of the catch. Nonetheless, Titius continues to use Ulpius to help catch fish, until the
boat is captured by pirates. Ulpius escapes, but due to the loss of the boat his services are no longer
required. In the meantime, Sabinus has ended his involvement in the undertaking, because he expected

47
to inherit a large amount of money from his grandmother, who suddenly became ill. Instead, his
godfather dies unexpectedly with the consequence that Sabinus inherits 5000 solidi. Discuss the legal
position of the respective parties.
9 Ennius requests his friend Furius, who is travelling to Milan, to buy him (Ennius) a garden statue, to lend
his friend (Ennius’s) Lucius 1 000 gold pieces, and further to buy himself (Furius) an antique vase. In
Milan, Furius lends the 1 000 gold pieces to Lucius, buys the statue and the vase, and enters into an
agreement Maevius whereby Maevius will transport the statue and the vase back to Rome for payment.
Upon Furius’s return to Rome, he finds out that the vase broke during the journey, that the statue fell
prey to a band of robbers, and that Ennius died the day after Furius left Rome to travel to Milan. Discuss.
10 Ennius requests Furius to lend Gaius 100 gold pieces. Furius does so. Discuss the legal position of the
parties. Indicate what the difference would be if Ennius did not request Furius to lend the money to
Gaius, but he concluded a fideiussio with Furius, according to which he bound himself as fideiussor
(surety) for Gaius’s debt.
11 “Roman law knew neither agency, assignment (cession) nor any other form of third party rights under a
contract.” Discuss.

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6. OBLIGATIONES QUASI EX CONTRACTU (QUASI-CONTRACT)
6.1 Introduction
6.2 Main types of obligationes quasi ex contractu

6.2.1 Negotiorum gestio (administering/ managing another’s affairs)
Note that if the circumstances were of such a nature that the gestor could obtain permission
from the dominus, but did not do so, and the dominus was aware of the administration of his
affairs, but did not object, a tacit mandatum could be concluded. The dominus could not
then afterwards question the usefulness of the administration of his affairs. In the later law,
an actio negotiorum gestorum utilis was awarded where a gestor was under the wrong
impression that he managed his own affairs, or where he knew that he was managing
another’s affairs but purely acted in self-interest. This can be called the extended action
based on managing another’s affairs.
6.2.2 The condictiones

In certain situations where money or a specific object was handed over on a legal basis
which subsequently proved to be non-existent or absent, the law still allowed that a transfer
of ownership took place. Because this increase in the patrimony or estate of the recipient
was unjustified, the impoverished party was awarded a condictio to have the excess value
in the enriched party’s estate returned or restored to him. Although this remedy can be
justified by resorting to the famous saying of Pomponius that it is fair in accordance with the
law of nature that nobody should be enriched to the detriment of another (D 50 17 206), the
Romans did not recognize that an obligation would arise whenever one person was
unjustifiably enriched at the expense of another. In short, unjustified enrichment was not
49
a source of obligations. The condictiones were only awarded in certain specific situations.
The most important of these were the following:
• If someone made a payment in the mistaken belief that it was due, the undue payment
could be reclaimed with a condictio indebiti.
• If someone handed another a sum or thing with the intention that the recipient should
provide a counter-performance, but the recipient did not do so, the sum or thing could be
reclaimed with the condictio causa data, causa non secuta. This condictio was
especially important in the context of the innominate contracts, but also when dealing with
actions that did not involve any contractual element, for example a gift subject to a modus.
If A handed B a thing as dowry for B’s anticipated marriage to C, but B and C do not get
married, A could claim restitution.
• If someone handed another a sum or thing with an immoral or illegal purpose, the
payment could in principle be recovered with the condictio ob turpem vel iniustam
causam even if the purpose was achieved. However, if both parties were tainted by the
impropriety, the condictio could be refused (e.g. if A paid B to assassinate C and A
claimed repayment of the money). The in pari turpitudine rule then applied, whereby, if
the parties are both tainted by illegality, the position of the possessor is stronger.
• Apart from these condictiones, Justinian awarded a condictio sine causa in residual
cases of unjustified enrichment.
The condictiones still form part of South African law and their application is studied in detail
in an advanced private law course in the final year.

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REVISION 6: OBLIGATIONES QUASI EX CONTRACTU
SHORT QUESTIONS
1 Merely name the Roman quasi-contracts that resembled the following contractus:
(i) mandatum
(ii) mutuum
2 Merely name the characteristic which underlies negotiorum gestio.

3. Merely list the main condictiones
PROBLEM QUESTIONS
1 Gaius came upon a slave who had been seriously injured by a band of robbers near the highway. Gaius
incurred considerable expense in providing medical treatment for the injured slave, but, after ten days,
the patient died. Subsequently he discovered that the slave belonged to Maveus.
Discuss the legal position of Gaius, who wishes to recover his expenses.
2 Julius’s surprise and delight on finding that the exterior of his hunting lodge had been repaired and
painted in his absence, turns to annoyance when he is confronted by Rusticus, an out of work painter,
who did the work and now claims reimbursement for the materials used and the time spent on the work.
Advise Julius as to his legal position.
3. Aulus mistakenly gives Balbus 100 sestercii, thinking that Balbus might need the money to pay for
Balbus’s wedding with Cornelia. In fact, Balbus is not getting married at all. Advise Aulus as to the legal
position.

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7. OBLIGATIONES EX DELICTO (DELICTUAL OBLIGATIONS IN GENERAL)
Prescribed: The notes below.

Notes:
7.1 Introduction
A third group of obligations arise from a delictum or maleficium (in modern terms: a wrongful
act). In contrast to contractual obligations, which arise from consent, delictual obligations
arise automatically or by operation of law. The law attaches certain consequences to a
unilateral, wrongful and culpable act. If it causes damage, a duty is placed on such person
to compensate for the damage or harm. This chapter then contains a number of introductory
remarks on the Roman law of delict. The most important specific delicts - damnum iniuria
datum (the Lex Aquilia) and iniuria, are dealt with in turn in sections 8 and 9 below. The law
regarding these delicts is still relevant to the modern South African law.
7.2 Delict, contract and criminal law

Initially Roman law did not draw a clear distinction between delicts and crimes. The earliest
law of delict was a peculiar type of private criminal law in which the victim himself (instead
of the state) prosecuted the wrongdoer in order to wreak vengeance on him or to obtain
some sort of monetary penalty as redress.
The reason why the Roman law of delict had to fill the gap which in modern times would
be dealt with under criminal law, is that criminal law was undeveloped in early Roman law.
Criminal law was restricted to public crimes (crimina publica) against the state or society, for
example murder, high treason and sacrilege. The perpetrator of a crime of this nature was
prosecuted by the state under criminal law and punished with the death penalty, exile,
imprisonment, corporeal punishment or a fine. The criminal justice system was initially not
well-organised. It was left to individual magistrates to punish matters within their jurisdiction.
This was improved by the introduction of standing jury courts (quaestiones perpetuae) in the
later Roman Republic each of which was responsible for dealing with a specific crime or
category of crimes.
On the other hand crimes against the individual, his family or his property were considered
private delicts (delicta privata) that had to be resolved by the private individuals who suffered
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injury themselves. The original redress for a delict between individuals was talio, retaliation,
an eye for an eye, a tooth for a tooth. However, the unacceptable consequences and side-
effects of retaliation were avoided by the victim agreeing to pay a sum of money as ransom
instead of vengeance being wreaked upon him. Later on the state introduced fixed penalties
for certain types of delicts. This development can be illustrated by the provisions of the XII
Tables dealing with the delict of iniuria (unlawful assault).
(i) It imposed the death penalty in cases of serious delicts such as furtum manifestum
(if the thief was caught in the act).
(ii) If the wrongdoer had maimed a limb (membrum raptum) of the victim the penalty
was retaliation (a limb for a limb), if the parties could not agree on a sum of money
to “buy off” the vengeance.
(iii) If the wrongdoer had broken a bone (os fractum) of the victim a penalty of 300 coins
in the case of a free person and 150 in the case of a slave was exacted from the
wrongdoer.
After the Lex Poetelia (326 BC) watered down the harsh retaliatory treatment meted out to
perpetrators of delicts, the notion of vengeance began to be replaced by the idea that a
delict should be redressed by compensation rather than vengeance.
7.3 The characteristics of the penal actions (actiones poenales)

The delictual action which had been developed as a replacement for the private right of
vengeance retained its penal character to a greater or lesser degree throughout the
development of Roman law. This explains the peculiar situation that the victim himself had
to organise the prosecution of the perpetrator (wrongdoer) and was, as a private person,
responsible for the execution of the sentence. This also explains why the victim pocketed
the sum of money paid as a private penalty (poena privata). The personal actions based on
private wrongs were mostly penal in character. An example of such a penal action (actio
poenalis), i.e. an action aimed at punishing the wrongdoer on account of his unlawful act,
was the action on account of insult to the personality (actio iniuriarum). Actiones poenales
are distinct from actiones reipersecutoriae which were aimed at the return of a thing (rei
vindicatio) or an economic benefit. A mixed action (actio mixta), was an action aimed at
making good the financial loss suffered by the victim while simultaneously punishing the
wrongdoer by including a penalty in the final award of damages. The most important
example of a mixed action was the Aquilian action, whereby the victim claimed patrimonial
loss as well as a penalty from the wrongdoer by one and the same action.
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Further consequences of the penal character of both genuine penal actions (actiones
poenales) and mixed penal action (actiones mixtae) were the following:
(i) The liability of joint wrongdoers was cumulative. This means that if several people
had participated in a delict, each wrongdoer had to pay the full amount claimed by
the victim. Each wrongdoer was liable in full and atonement by one did not release
the others. Accordingly if several people assaulted a slave with the result that the
slave died, the classical jurist Julian stated that, if it could not be proved by whose
blow the slave died, the joint wrongdoers should all be held liable under the Lex
Aquilia for killing the slave.
(ii) There could be an accumulation of actions. In the case of theft, penal actions
(actiones poenales) could be used to recover a penalty for the delict, whereas other
actions styled persecutory actions (actiones rei persecutoriae), could be used to
recover that which has been stolen or its value. The persecutory actions were the
rei vindicatio, aimed at getting back the thing itself, and the condictio furtiva, aimed
at obtaining its value. The penal actions could be instituted cumulatively (together
with) either of the persecutory actions; however one could not claim with both the
rei vindicatio and the condictio furtiva.
(iii) Delictual actions were passively intransmissible in other words they did not pass
to the heir of the defendant (wrongdoer). Accordingly liability for a delict ended with
the death of the perpetrator. The heirs were not liable for the sins of the fathers.
Originally delictual actions were also actively intransmissible, meaning that a
personal action was not available to the heirs of the victims. In due course, all
delictual actions became actively transmissible except in the case of the action on
insult to the personality (actio iniuriarum), which on account of its intensely personal
character remained actively intransmissible.
(iv) The fact that a master (or paterfamilias) or the owner of a domestic animal was held
noxally liable for damage caused by his slave (or son-in-power) or his domestic
animal also harked back to the penal character of delictual actions.
Under noxal liability the master (paterfamilias) or owner at the time of litis
contestatio had the choice of either paying the damage or handing over the slave
(son-in-power) or domestic animal so that vengeance could be wreaked on the
wrongdoer.
7.4 Specific delicts – Introduction

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The Roman law of delict did not as in modern South African law, recognise a general action
on delict for any wrongful act but had a closed system of delicts in the same manner as the
Roman law of contract. Accordingly, one should refer to the Roman law of delicts. Only if
the specific requirements of a particular delict were met, could an action be instituted. In
essence, Roman law distinguished between three groups of delicts, namely delicts under
civil law, praetorian delicts and quasi-delicts. A total of ten delicts are discussed in the
Roman texts but the four minor quasi-delicts played a minor role and the two praetorian
delicts were characterised by certain peculiarities. In addition several instances of
patrimonial loss redressed under provisions of the XII Tables still lingered on in classical
Roman law and were still punishable then. These include the action for secretly cutting down
trees or shrubs (actio de arboribus (vitibus) succisis), the action against a guardian for
meddling with the accounts of his ward (actio de rationibus distrahendis), the action for
plundering graves (actio de sepulchro violato), the action for burning a house (actio de
aedibus insencis) and the action for changing the natural flow of water (actio de pluviae
arcendae). The action against corrupting a slave physically, morally or mentally (actio de
servo corrupto), which has praetorian roots, also fell into this category.
The four major delicts are those from civil law namely theft (furtum), robbery (rapina),
wrongful damage to property (damnum iniuria datum) and insulting behaviour (iniuria). The
first two delicts, nowadays fall under criminal law and need not be dealt with here. It is the
last two delicts, to which the elements of our modern delictual action can be traced, which
merit detailed discussion. This is provided in the next two sections.

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8. DAMNUM INIURIA DATUM (LEX AQUILIA)
Prescribed: The notes below.

Prescribed Notes:
8.1 Introduction
The history of the delict of wrongful damage had a fragmented beginning, received its main
impetus by legislative reform in the form of the Lex Aquilia and was eventually extended
beyond its original scope by extensive juristic interpretation and praetorian intervention.
We have already seen that the XII Tables mentioned several actions for wrongful damage
to property inter alia the action for secretly cutting down another person’s trees (actio
arboribus succisis) and the action for burning down another person’s house (actio de
aedibus incensis). This fragmented treatment of wrongful damage to property was however
decisively generalised in the middle Republic with the enactment of the Lex Aquilia aimed
at creating a uniform delict of wrongful damage to property. Although views vary on the date
of the Lex Aquilia, 287 BC is generally accepted as the most plausible date.
8.2 The original provisions of the Lex Aquilia

8.2.1 Introduction
The Lex Aquilia consisted of three sections known as chapters. The first and third chapters
dealt with wrongful damage to property. The second chapter dealt with something
completely different, namely the contract of adstipulation. It imposed liability on a second
creditor (adstipulator) under a stipulatio who fraudulently released the debtor as against the
principal creditor. A plausible explanation for the obviously illogical sequence of chapters is
the view that the Lex Aquilia was rushed through by the plebeians to settle not only delictual
but also certain contractual grievances against the patricians. With the advent of the contract
of mandate (±200 BC), the second chapter fell into disuse since redress was available
against the fraudulent adstipulator by means of the contractual action on mandate.
8.2.2 The first chapter

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The first chapter of the Lex Aquilia provided the following:
D 9 2 2 pr. (Gaius): Lege Aquilia capite primo cavetur: ‘ut qui servum servamve alienum
alienamve quadrupedemve pecudem iniuria occiderit, quanti id in eo anno plurimi fuit, tantum aes
dare domino damnas esto’.
“If anyone kills (occaederit) unlawfully a slave or servant-girl belonging to someone else or a four-
footed animal that grazed in herds (pecudes), let him be condemned to pay the owner whatever
was the highest value of the slain slave or animal in the preceding year”.
The first chapter was prima facie of minor scope dealing only with the killing of slaves and
beasts of pasture (pecudes). If slaves or beasts were killed, the owner could claim the
highest value of the slaves or beasts the previous year. The reason was probably to protect
the victim against fluctuations in value. It also reduced problems of proof and reflects the
mixed, that is reipersecutory as well as penal, character of the Lex Aquilia.
8.2.3 The third chapter

The third chapter of the Lex Aquilia provided the following:
D 9 2 27 5 (Ulpianus): Tertio autem capite ait eadem lex Aquilia: ‘Ceterarum rerum, praeter
hominem et pecudem occisos, si quis alteri damnum faxit, quod usserit, fregerit, ruperit iniuria,
quanti ea res fuit (erit) in diebus triginta proximis, tantum aes domino dare damnas esto.’
“In respect of all other damage besides slaves or cattle killed, if anyone does damage to another
by wrongfully burning (urere), breaking (frangere) or crushing to smithereens (rumpere), let him
be condemned to pay to the owner whatever the value of the object was the past 30 days (fuit) or
whatever the damage will appear to come to in the next 30 days (erit).”
The third chapter of the Lex Aquilia dealt with wrongful damage caused to the property of
another by burning, breaking or crushing. The owner of the damaged property could sue the
wrongdoer either for the (highest) value of the property in the preceding 30 days or for his
patrimonial loss as would become apparent in the next 30 days.
Views diverge on the subject matter of the third chapter. The most authoritative view,
held by the Romanists Lenel and Kaser, is that the third chapter initially covered everything
but killing slaves and cattle. It therefore applied to wounding slaves and cattle as well as
destroying and damaging lifeless things (like a house, wheat field or vat of wine). According
to this view, there was no extension of the original provisions of the Lex Aquilia (287 BC) in
classical Roman law (+ 100 BC - 300 AD) regarding the subject matter to which it applied.

57
However, according to Jolowicz, the third chapter originally only covered the destruction of
lifeless things, and was only extended in the classical period by the jurists to cover wounding
slaves and cattle and damaging lifeless things. According to a third view by Daube, the third
chapter originally only applied to wounding slaves and cattle, but was extended in the
classical period to damaging and destroying lifeless things. In this regard he relies on some
Mosaic laws, which first deal with killing, and then with wounding slaves and cattle.
The ambiguity of the language of the third chapter has also provoked controversy on the
measure for determining damages. The most authoritative view on the measure of
damages is that the value principle was the original principle according to which the
measure of damages was calculated. In terms of this principle the owner was entitled to
claim the full value of a wounded slave or beast or a damaged inanimate object. This
primitive value principle is not only in accordance with the penal character of the Roman law
of delict but also fits the political aim of the Lex Aquilia namely to redress political grievances
of the plebeians against the patricians. The value principle was superseded by the so-called
interesse principle allowing the owner to recover not the value of the object but only the
loss that became apparent in the 30 days after the damage. This more sophisticated
determination of the measure of damages was only achieved in classical Roman law and
can probably be ascribed to juristic interpretation.
8.3 Extensions of the original provisions of the lex Aquilia

8.3.1 Introduction
The original provisions of the Lex Aquilia were very limited in scope and left many instances
of wrongful damage to property without legal redress. However, if the Lex Aquilia had
remained unchanged, the study of Roman law would have little relevance. The
development of the Lex Aquilia and the final result in Justinianic law is the focus of this
section. Nevertheless, attention to the original text of the statute and its deficiencies are
necessary to facilitate understanding of the various elements and the necessity and direction
of the development.
It should come as no surprise that the Roman jurists, the praetor and Justinian were
responsible for the extension and refinement of the provisions of the statute. As
Roman society developed from agricultural into urban, as Roman law became the object of
contemplation and study, as new cases arose and gaps became obvious, the Lex Aquilia
was gradually adapted to the requirements of a developing society. Several extensions are

58
self-explanatory and do not require great legal acumen. Others, however, are the basis of
important legal breakthroughs and deserve special attention.
8.3.2 Extension of the first chapter

The provisions of the first chapter was in the course of time extended by juristic
interpretation of the original words of the first chapter and by the praetor granting
actiones utiles or actiones in factum in analogous cases. Romanists have up to now
not solved the problem of when one or the other of these actions were granted. The most
plausible view is that the actio utilis was probably granted in all cases where there was a
close analogy with the original statute.
The most important extension of the first chapter occurred with regard to the act required
for liability. The original text of the Lex Aquilia used a very strong verb for killing namely
caedere which literally meant to slay or to fell down, that is killing by direct bodily contact.
Accordingly if a slave was strangled by bare hands, stabbed to death with a sword or
chopped up with an axe, his owner could bring an action, but not if his cow was drowned.
The jurists extended this narrow scope of the first chapter by interpreting the word caedere
as occidere thereby allowing liability for less direct forms of killing. Examples were where a
person killed a slave by throwing a javelin at him, by shooting him with a bow and arrow, by
injecting poison into his body, by dropping a heavy beam on him or by pushing him from a
bridge with the result that he drowned. In all these instances the owner was allowed to claim
the highest value the slave had the previous year with the actio legis Aquilia. Then the
praetor stepped in and extended the scope of the first chapter even further by allowing an
actio utilis or an actio in factum in all circumstances where the wrongdoer furnished a cause
of death that created a situation from which death resulted (mortis causam praestare).
Examples were where a person offered poison instead of medicine to a sick slave who drank
it and died; where a person gave a sword to a mad slave and the slave committed suicide;
where a person locked up cattle which eventually died of hunger; where a person removed
all the clothes of a slave with the result that the slave froze to death or where a person drove
cattle along a narrow mountain trail with the result that they fell down a precipice.
A second extension of the scope of the first chapter was by juristic interpretation given to
the word pecudes. Originally the term included sheep, goats, horses, mules, cattle and after
some doubt settled by the early jurist Labeo, also pigs. Neither dogs, nor wild animals were
ever included in the class of pecudes. An exception was, however, made by the jurists in

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the case of elephants and camels on the ground that they were frequently used as draught
animals. Bipeds (like ostriches) were never included.
A third extension concerned the measure of damages that could be claimed. Originally
the owner of a slain slave or beast could claim the highest value the animal or beast had in
the preceding year. By juristic interpretation the value principle was interpreted so as to
include instances of lucrum cessans (loss of profit) and damnum emergens (damage that
came to light). Accordingly if a slave who had been instituted as heir was killed, the value of
the inheritance was included in the amount of damages claimed. Again, if someone killed
one of a troupe of dancers or musicians, or one of twins or of a chariot team or one of a
matched pair of mules, the measure of damages did not only include the value of the object
destroyed but also the amount to which the value of the others (of the team) had been
lessened.
A fourth extension concerned the basis of liability and especially the element of
blameworthiness. The original text of the Lex Aquilia only required wrongful damage and did
not mention intent or negligence accordingly ignoring the mens rea element. This is not
necessarily another indication of the primitiveness of the Act since it is difficult to envisage
instances of direct slaying lacking intent or negligence. In classical law the jurists, however,
pointed out that the element of iniuria required in the Act could not only be interpreted in the
sense of wrongfulness (non iure) but also included an element of culpa namely fault or
blameworthiness. Accordingly Ulpian stated that iniuria had to be understood as something
that was done not according to the law (non iure) in short, contrary to the law, that is if
someone killed negligently (D 9 2 5 1).
The last extension concerned the persons to whom the action was available. In terms of
the original provisions of the first chapter, the action was available only to the owner, while
other interested parties had no remedy. In the course of time, the praetor gave an actio utilis
to various interested parties who had suffered loss on account of the death of a slave or
beast of pasture namely the bona fide possessor, the usufructuary, the user, the pledgee
and the tenant of land (colonus) if the owner had undertaken not to sue himself. The action
was, however, never made available to the borrower, the purchaser in a contract of sale or
other persons with a mere personal right. The Aquilian actions were later no longer limited
to Roman citizens, but also made available to foreigners (peregrini).

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8.3.3 Extension of the third chapter

As in the case of the first chapter the original scope of the third chapter of the Lex Aquilia
was vastly extended by juristic interpretation and the intervention of the praetor granting
analogous actions in the form of an actio utilis or actio in factum.
In general it can be stated that the third chapter of the Lex Aquilia applied to all types of
damage to property not covered by the first chapter. Accordingly it was applicable in case
of the wounding of slaves and pecudes, the killing or wounding of dogs or wild animals in
captivity and the destruction of or damages to inanimate objects like a house or a cornfield.
With regard to the measure of damages we have already said that the value principle
applied in terms of the original provisions of the Lex Aquilia. According to Gaius and Ulpian
the word ‘highest’ (plurimi) was not part of the original text, but an insertion made by the
jurists. Even so, most Romanists hold the view that by the time of Julian (consul 149 AD)
the value principle due to juristic interpretation was replaced by the interesse principle
allowing the plaintiff to recover whatever the thing was worth to him. Accordingly damages
for loss of profits (lucrum cessans) could, as under the first chapter, be claimed under the
third chapter. Examples were if a last will, in terms of which an heir of legatee could have
derived benefit, was destroyed or if a document which contained an acknowledgement of
debt was destroyed.
The most important extension of the third chapter, again occurred as in the first chapter,
with regard to the act required for liability. Under the third chapter, damage was limited to
damage caused by burning, breaking or crushing. Accordingly all other forms of damage to
property were excluded. These strong verbs implied not only that the damage must have
been caused by direct bodily contact to a corporeal thing (damnum corpori) but also that an
action would only lie in case of serious damage. This is understandable if one keeps in mind
that the Lex Aquilia was enacted during a time of violence and political unrest. However, the
early classical jurists (veteres) rather boldly interpreted the word rumpere (to crush to
smithereens) as corrumpere that is to spoil or to damage. They held that a thing was
considered crushed when it was damaged or spoiled in any way (Inst 4.3.13). As a result of
this interpretation any form of damage directly caused by a positive act whether by cutting,
bruising, contusing, pouring out, defacing or mixing fell under chapter 3. Accordingly Celsus
wrote that the Aquilian action can be brought against a person who adultered wine, spilled
it or turned it into vinegar on account of spoiling the wine. Pouring cereal or corn into the
river, or mixing sand with corn were also given as examples of corrumpere (spoiling), thus

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rendering the wrongdoer liable in terms of the third chapter. Immediate physical contact
between the wrongdoer and the damaged object was, however, still an essential
requirement for liability. It was again left to the praetor to boldly extend the scope of the third
chapter by granting actiones utiles or actiones in factum in cases of less direct damage to
property namely where a situation was created from which damage could follow. Examples
were the following: where a pregnant mare was driven on so hard that she miscarried; where
a wine-vat was punctured with the result that the wine was lost; where leaking water-pipes
were installed next to a house with the result that the walls of the house got wet; where
weeds were sown in a cornfield. The praetor apparently even allowed an extended Aquilian
action in a few particular instances of patrimonial loss without any direct damage to property.
Examples were where a person knocked coins out the hand of someone and the coins fell
into a river, the sea or a drain or where a man waved a red flag and cattle rushed off to fall
into the hands of thieves.
This extension was confirmed by Justinian (I 4.3.16) who granted an action for patrimonial
loss although the damage was not caused by a direct positive act and although no property
was physically damaged. A visitor found a slave in chains. The slave told a sad story. Out
of pity the visitor unchained the slave who promptly ran away never to be found again.
Although the slave was not injured, the owner suffered patrimonial loss and Justinian
allowed him to recover it by an Aquilian action. Accordingly the basis was laid for an action
for damages in all cases of patrimonial loss.
Since the Lex Aquilia was originally restricted to damage to property, no action was
available on account of loss caused by the injury to a free person. The reason
advanced was that the limbs of a free person could not be regarded as his property.
However, in the course of time the praetor granted an actio utilis to a master (dominus) or
family father (paterfamilias) whose slave or son had been injured to recover medical costs
and loss of income. This action was later also made available to adult free persons. This
was an important exception to the principle that a tangible thing had to be damaged.
Although limbs were not regarded as things, the praetor allowed a free person to sue for
bodily injuries. The modern actions on account of pain and suffering and on account of the
death of a breadwinner reached South African law via Germanic law.
With regard to the element of blameworthiness (mens rea) and the persons to whom the
Aquilian action was available, the same extensions were brought about in the third chapter
as those that took place with regard to the first chapter.

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8.4. The actio legis Aquiliae
The plaintiff in the Aquilian action had to prove that the damage had been caused by the
defendant. Accordingly if two slaves jumping over some burning straw, jumped into each
other and one fell into the fire and was burnt to death, the owner of the burnt slave would
have difficulty in proving who caused his death (D 4.2.45.3).
The plaintiff made an estimate of his damages and instituted his claim. If the defendant
acknowledged his liability, but queried the assessment of damages, a case followed in order
to decide on the damages. If the defendant denied liability and defended the claim, a case
followed and if judgment was given against him, he was ordered to pay double the amount
of the claim. Lis crescit infitiando in duplum, the case increases to double against the
defendant who denies. This point illustrates the punitive nature of the actio legis Aquiliae.
An alternative explanation is that the basis of the rule that the injured party could claim
double in case of denial, was probably to encourage the parties to reach a settlement. This
explanation is plausible since the Lex Aquila was adopted during a time of civil unrest.
As all other delictual actions the Aquilian action was passively intransmissible, and action
could only be brought against the heirs if they were enriched by the wrongful act. However,
the Aquilian action was actively transmissible. In addition, the actio legis Aquiliae allowed
for an accumulation of actions thatresulted in cumulative liability for joint wrongdoers.
Accordingly if several persons carrying a beam, negligently dropped it on a slave who died
as a result, all these persons would be cumulatively liable under the Aquilian action.
8.5. Conclusion
The general principles which evolved in due course from the Lex Aquiliae contributed to the
development of a comprehensive action in modern South African law for the recovery of
patrimonial loss due to damage to property, injury or death. Nowadays, it is accepted that
the delictual remedy of damages is available in principle whenever the following
requirements are met: i) an act, ii) wrongfulness (this requirement is rooted in the non iure
concept), iii) fault (culpa), iv) causation, and v) damage. These abstract elements, which
were not known by the Romans, will enjoy detailed consideration in the course on the
modern law of delict, which forms part of Private law 373.

63
9. INIURIA (INSULTING BEHAVIOUR)

Zimmermann, The Law of Obligations, pp. 1050 - 1094
* According to Borkowski’s Textbook on Roman Law at 10.4.2.3, one of the essential
elements of iniuria was that the injuring behaviour had to be the result of the intention to
injure or animus iniuriandi. But, as Zimmermann points out (at 1060-1061), this is an
unacceptable generalisation, since the texts simply do not clearly say so. The Romans did
not think in terms of specific requirements for liability. It might perhaps be that that some
type of intentional behaviour or dolus usually accompanied an iniuria, but it does not follow
that this was a requirement.
10. OBLIGATIONES QUASI EX DELICTO (QUASI-DELICTUAL OBLIGATIONS)

Zimmermann, The Law of Obligations, pp. 16-18, 19-20, 1126-1130
REVISION 7-10: DELICT AND QUASI-DELICT AS SOURCES OF OBLIGATIONS
SHORT QUESTIONS
1. Briefly discuss the contribution of the Twelve Tables to the development of the early Roman law of delict.
2. Name the main characteristics of the actiones poenales
3. Name the two most important delicta from the perspective of modern South African law.
4. Briefly discuss the way in which damages were calculated when applying the lex Aquilia
5. Name the main types of obligatio quasi ex contractu.

1. Alfenus, a free person, alleges that Julius swore at him on street, tore his toga, prevented him from taking
his seat in the theatre, burst into his house at night, and hit him over the head with a stick. Alfenus further
alleges that Julius poisoned his slave Stichus instead of giving him medicine, and that Julius untied his
slave Sylvia, who has now deserted from the workplace. He also alleges that Julius cut the anchor rope of
64
his boat, which resulted in the boat being shattered on some rocks, and that a vase which was placed on
the window sill of Julius’s house fell on Alfenus’s head when he was passing by. Advise Alfenus with regard
to his delictual remedies.
2. Discuss the main extensions of the lex Aquilia with regard to the
(a) the type of acts it covered
(b) the objects it applied to
(c) the measure of damages
(d) the basis of liability, especially the element of fault or blameworthiness
(e) the person to whom it was available
3. Discuss how the Roman law of delict developed to provide remedies where one person injures or kills
another. In your answer you must distinguish between the positions with regard to:
(a) free persons; and
(b) slaves.
____________________

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ROMAN LAW 271

ROMAN LAW OF OBLIGATIONS 2021

© Department of Private Law, Stellenbosch University 2020

B. COURSE OUTLINE WITH SUPPLEMENTARY NOTES

1.1 The meaning of the obligation concept in Roman law

Recommended: du Plessis, Borkowski’s Textbook on Roman law, chapter 9.1.2

REVISION: 1 GENERAL INTRODUCTION

2.1 The oldest types of contract

2.2 Agreement, contractus and pactum

2.3 General principles of the Roman law of contracts

REVISION 2: OBLIGATIONES EX CONTRACTU IN GENERAL

3.3 The abstract nature of the stipulatio

Section 3.4 and further will be covered in the second semester.

© Department of Private Law, Stellenbosch University 2021

REVISION 3: CONTRACTUS VERBIS ET LITTERIS

DISCUSSION AND PROBLEM QUESTIONS

5 Discuss the validity of the following stipulationes in the Roman law:

© Department of Private Law, Stellenbosch University 2021

3. CONTRACTUS VERBIS & CONTRACTUS LITTERIS (VERBAL AND WRITTEN

3.4 Field of application of the stipulatio

© Department of Private Law, Stellenbosch University 2021

SUPPLEMENTARY NOTES BELOW.

© Department of Private Law, Stellenbosch University 2021

© Department of Private Law, Stellenbosch University 2021

© Department of Private Law, Stellenbosch University 2021

A post classical note (glossa) gave the following reason:

© Department of Private Law, Stellenbosch University 2021

3.5 Invalid Stipulationes

© Department of Private Law, Stellenbosch University 2021

3.6 Written contracts (contractus litteris)

© Department of Private Law, Stellenbosch University 2021

REVISION 3: CONTRACTUS VERBIS ET LITTERIS

DISCUSSION AND PROBLEM QUESTIONS

© Department of Private Law, Stellenbosch University 2021

© Department of Private Law, Stellenbosch University 2021

4.2 Mutuum (loan for consumption)

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4.3 Commodatum (loan for use)

© Department of Private Law, Stellenbosch University 2021

4.4 Depositum (bailment; deposit)

Recommended: du Plessis, Borkowski’s Textbook on Roman law, 9.5.3

4.5 Pignus (Pledge)

© Department of Private Law, Stellenbosch University 2021

4.6 Contractus re innominati

© Department of Private Law, Stellenbosch University 2021

DISCUSSION AND PROBLEM QUESTIONS

10 Consider the following situations and discuss the legal consequences:

© Department of Private Law, Stellenbosch University 2021

5.2 Locatio Conductio (letting and hiring)

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5.2.2 Locatio conductio rei (letting and hiring of a thing)

5.2.3 Locatio conductio operarum (letting and hiring of services)

5.2.4 Locatio conductio operis (letting & hiring of a piece of work)

5.3 Societas (partnership)

© Department of Private Law, Stellenbosch University 2021

5.4 Mandatum (mandate)

* Mandate, cession and agency

© Department of Private Law, Stellenbosch University 2021