The innominate contracts are classified by the Romans according to categories. (1) do ut des. Paul. Et si quidem pecuniam dem, ut rem accipiam, emptio et venditio est: sin autem rem do ut rem accipiam, quia non placet permutationem rerum emptionem esse, dubium non est nasci civilem obligationem, in qua actione id veniet, non ut reddas quod acceperis, sed ut damneris mihi, quanti interest mea illud, de quo convenit, accipere; vel si meum recipere velim, repetatur quod datum est, quasi ob rem datum re non secuta.-1. 5, § 1, D. h. t.1 (2) do ut facias. At cum do ut facias, si tale sit factum, quod locari solet, puta ut tabulam pingas, pecunia data locatio erit si rem do, non erit locatio, sed nascetur vel civilis actio in hoc quod mea interest, vel ad repetendum condictio: quodsi tale est factum, quod locari non possit, puta ut servum manumittas, . . . condici ei potest vel praescriptis verbis agi.—§ 2, ib.3 must needs make the journey, or you have already incurred the expense which was necessary for the journey, so that it is plain you have laid out more perhaps than you have received, the personal action will fall through; but if less have been spent, the condictio will obtain, so nevertheless that an indemnity be rendered to you for that which you have disbursed. 1 If I make a payment to receive a thing, it is a purchase and sale; but if I make over a thing to receive a thing, inasmuch as an exchange of things is held to be not a purchase, there is no doubt a civil obligation is begotten; in which action the result will be, not that you return what you received, but that I get judgment against you for damages for the loss sustained by me in not receiving the object of the agreement, or if I wish to get back my own property, that which was conveyed shall be recovered, which was made over presumably for a consideration that has failed. 2 But when I make a conveyance in consideration of a performance by you, and the act is of such a character as is commonly done by letting, for example, that you paint a BOOK III. Pt. I. Ch. II. BOOK III. Pt. 1. Ch. 11. a D. 19, 5, 22. b Cf. D. 19, 5, 6. § 19 (3) facio ut des.-This form was doubted by some Roman jurists." Quodsi faciam ut des, et postea quam feci, cessas dare, nulla erit civilis actio et ideo de dolo dabitur.-§ 3, ib.1 (4) facio ut facias. Si pacti sumus, ut tu a meo debitore Carthagine exigas, ego a tuo Romae, vel ut tu in meo, ego in tuo solo aedificem et tu cessas, . . . tutius erit . . . praescriptis verbis dari actionem, quae actio similis erit mandati actioni, quemadmodum in superioribus casibus locationi et emptioni.-1. 5, § 4, h. t.2 ACTIONABLE PACTA. $127. PACTA ADIECTA. 'Pacta adiecta' are the subordinate clauses added to an agreement immediately upon the conclusion thereof (in continenti), qualifying its subject-matter; which, if the principal agreement is a bonae fidei contractus, can be enforced by the action that arises upon it. Ulp. Ait praetor: PACTA CONVENTA, QUAE picture, the letting will follow payment of the money; if I convey a thing, it will not be a letting, but there arises either an action for my damages, or a personal action for recovery; but if such a thing has been done which cannot be done by letting, for example, that you enfranchise a slave, . . . a condictio can be brought against him, or proceedings praescr. verbis. 1 But if I shall do something in consideration of a conveyance by you, and after performance by me you forbear to make the conveyance, there will be no civil action, and therefore an action will be given for fraud. ... 2 If we have agreed that you are to recover from my debtor at Carthage, I from yours at Rome, or that you are to build on my ground, I on yours, and you forbear, . . . it will be safer . . . for an action to be given praescr. verbis, which action will be analogous to that of mandate, as in the above cases to letting and purchase. NEQVE DOLO MALO, NEQVE ADVERSVS LEGES PLEBIS- Quin imo interdum (nuda pactio) format ipsam These subordinate agreements can be of unlimited variety. Id. Si venditor habitationem exceperit, ut inquilino liceat habitare, vel colono ut perfrui liceat ad certum tempus, magis esse Servius putabat ex vendito esse actionem.-1. 13, § 30, D. de A. E. V. 19, 1.3 Nerat. Insulam hoc modo, ut aliam insulam reficeres, vendidi. Respondit nullam esse vendi 1 The Praetor says: Agreements that shall have been made neither by fraud, nor against statutes, decrees of the People, of the Senate, imperial edicts, nor so that any one of them is evaded, I will uphold.' 2 Nay rather, sometimes, (a mere agreement) shapes the action itself; for we are accustomed to speak of agreements as inherent in bon. fid. actions. But this must be taken to mean that, if the agreements are immediately annexed (to the contract), they also form part of the plaintiff's case; if they followed some time afterwards, they are not an integral part of it, and will be of no effect if he take proceedings, that no action may arise upon a (mere) agreement, . . . for those agreements are operative which annex a condition to a contract, i.e., which were made upon the conclusion of the contract. 3 If the vendor has reserved the occupation, to allow of his lodger's occupation, or of his tenant's enjoyment for a term, Serv. was of opinion that the action is rather upon the sale. BOOK III. Pt. I. Ch. II. tionem, sed civili intentione incerti agendum.D. 19, 5, 6.1 Pomp.: Si vendidi tibi insulam certa pecunia et ut etiam insulam meam reficeres, agam ex vendito, ut reficias: si autem hoc solum, ut reficeres eam, convenisset, non intelligitur emptio et venditio facta.-1. 6, § 1, de A. E. V. Hermog. Qui fundum vendidit, ut eum certa mercede conductum ipse habeat, vel si vendat, non alii alii sed sibi distrahat, vel simile aliquid paciscatur, ad complendum id quod pepigerunt, ex vendito agere poterit.-D. 18, I, 75.as § 128. PACTA PRAETORIA. Certain informal agreements were furnished by the Praetors with an action. To these belong (1) the constitutum s. pecunia constituta' (promise of payment), i.e., the agreement by which any one promises the fulfilment of an existing civil or natural obligation (especially a money debt), one's own or another's, commonly, and at first regularly, accompanied by the appointment of a definite term for payment (constitutum debiti proprii―alieni). Ulp. Debitum autem ex quacumque causa potest constitui, id est ex quocumque contractu. 1 I have sold a house subject to this condition, that you repair another house. His answer is, there is no sale, but proceedings must be taken by a civil claim incerti. 2 If I have sold you a house for a certain sum, and in consideration also of your repairing a house of mine, I shall sue upon the sale for your repairs; but if the agreement had been alone that you should repair it, it is not considered that a purchase and sale has been concluded. 3 He that has sold land under the condition that he himself is to have the hire of it at a certain rent, or that if (the parchaser) sell it, he shall dispose of it to none other but himself, or shall make any like bargain, he will be able to sue ex vendito for performance of their agreement. -Debitum autem vel natura sufficit.-1. 1, §§ 6, 7, D. h. t. (de pec. const. 13, 5).' : Id. Si quis autem constituerit quod iure civili debebat, iure praetorio non debebat, id est per exceptionem, . . . Pomponius scribit eum non teneri, quia debita iuribus non est pecunia, quae constituta est.-1. 3, § 1 eod." а endo. Paul. Si is qui . . . debebat, in diem sit obligatus,-Labeo ait teneri ; . . . et adiicit, vel a Sc. constitupropter has potissimum pecunias, quae nondum peti possunt, constituta inducta.-Sed et si citeriore die constituat se soluturum, similiter tenetur. -§ 2, ib., 1. 4 eod." Ulp. Constituere et praesentes et absentes possumus.-1. 14, § 3 eod.* Id. Quod exigimus, ut sit debitum quod constituitur, in rem exactum est, non utique ut is, cui constituitur, creditor sit: nam et quod ego debeo tu constituendo teneberis, et quod tibi debetur, si mihi constituatur, debetur.—1. 5, § 2 eod." Scaev. Quidam ad creditorem litteras eiusmodi 1 Now an undertaking can be given to pay by whatever title, i.e., by virtue of whatever contract.-But a debt even by Natural Law is sufficient. 2 Now if a man has undertaken to pay what he owed by Civil Law, but did not owe by Praetorian Law, i.e., by a plea, . . Pomp. writes that he is not liable, because money the payment of which has been undertaken is not owing by the laws. 3 If the debtor have bound himself to pay at a fixed date, Labeo says he is liable; . . . and he adds that constituta have been introduced even because of these claims in particular which cannot yet be enforced,-but even if he should undertake to pay at an earlier date, he is likewise liable. • We can undertake payment either as present or absent. When we claim that it is a debt the payment of which is undertaken, the claim has been made in rem, not of course that he to whom the undertaking is given is creditor, for both what I owe you will by your undertaking be liable for, and what is owing to you, if an undertaking is given to me, is a debt [to me]. |