Entering into a Contract in Roman Law - Case Study Example

Roman Law The law that will be applied in this case is that of jus civile which comprises the body of common laws that applied to Roman citizens. Jus civile also signified the unwritten rules and maxims of customary law1 which were set out in the law of XII the Tables. The application of jus civile to this case would mean that the agreement between Albus and Brutus, as well as the agreement between Albus and Decius would be moderated in accordance with the existing principles of civil law. Jus Praetorius on the other hand would be the application of equitable principles in ensuring that justice is done. Under the Roman law, while entering into a contract, it was necessary to adhere strictly to certain forms and if those forms were not satisfied then the agreement would be deemed to be invalid and would fail. According to Gaius, if a claimant who sought recoveries for destruction of his vines referred to them as such, he would lose his cause then and there because a correct application of the law would require him to refer to those vines as trees – the correct term to be used2. Moreover, there were only some days in which magistrates would sit to adjudicate public business Five specific remedies were available under Roman civil law, which were known as legio actionce because there were specifically prescribed under civil law and were cast in specific legal forms that had to be strictly followed. The procedure for Roman Citizens to approach a magistrate for the resolution of a dispute were set out in the Law of XII - the Tables. According to the procedure, the plaintiff would generally be obliged to appear in person, except for some notable exceptions, for example a slave could not appear in person but had to have a free person represent him. The procedure consisted of five actions in law -three declaratory actions of law were to be taken first: legis actio sacramentum, legis actio to per iudicis postulationem and legis actio to per condictionem” followed by two executive “legis actio to per manus iniectionem and legis actio to per pignoris capionem.3 These formalities had to be followed strictly and the rites of each action were to be made in swears before a magistrate and any small error could result in a loss of the process. There is also a dispute that arises in the case of Albus with Brutus on the slave, as well as with Decius for the supply of defective grain. Therefore it appears that Albus may have to approach the magistrate on an appointed day when he is in presence to present the facts of the respective cases in order to try and attain justice. In reference to the sale of the slave from Brutus, it may be noted that there were two specific terms that were agreed to between the parties on the principle of consensus ad idem. This was one of the basic requirements for a contract, and it was meant to represent a meeting of the minds where each party understood the commitments to be made by each. The transaction would also be governed by the principle of caveat emptor – let the buyer beware. The underlying premise of this position is that buyers take responsibility for the items that they purchase and therefore they must examine them carefully before they purchase them. These two aspects would also govern the agreement between Albus and Brutus. The two terms agreed to in the agreement between Albus and Brutus were that (a) the slave transaction would take place when the Emperor arrived in Rome and (b) the price was to be fixed by Cassius. This was the consensus ad idem that was reached between the parties, however in actual practice it did not work out that way. It must be noted that only one of the terms of the agreement were fulfilled, i.e, the emperor’s return and Brutus sent the slave before Cassius could set the price. However in this context, recoveries to Albus may be hindered by the fact that he accepted the slave despite the fact that one of the conditions had not been fulfilled, namely Cassius declaring the price. Moreover, the application of the principle of caveat emptor would further reinforce the obligation that Albus had to thoroughly inspect the salve before accepting him, especially since the slave had arrived before the pre-determined time. i.e, before Cassius had set the price. In view of the fact that Albus accepted the slave despite the non fulfillment of the contractual terms and without adhering to the requirements of the caveat emptor principle may in itself prove to be grounds whereby his recoveries may be limited. However, Albus can seek recoveries on the grounds of jus praetorius or the application of equity in this transaction. Since Albus has paid for the a defective salve, who was infected and has consequently caused Albus great losses in that he has passed on his illness to other slaves, there is an element of injustice that has resulted from the transaction and this can form the grounds for Albus to seek compensation from Brutus for the unnecessary losses he has suffered. Under the Roman law, due to the losses Albus has suffered from the spread of infection among his slaves, he can approach the magistrate in accordance with the specific procedures spelt out in the law of XII – the Tables and follow the five prescribed courses of action for compensation because a wrong has occurred and there is a need to restore the balance4 in Albus’ household of slaves which has been wrongfully disturbed by the addition of an infected slave. In view of the wrong that has been committed, the Preator can then summarily command Brutus to take the slave back and also compensate Albus for the disturbance to his household. However, Albus has to be very careful to present his case using specific terms as they are spelt out in the XII Tables. He must follow the formalism of each of the five actions, textually repeating the words contained in the legal formula because if they are not exactly reproduced by him, then he runs the risk of losing out in the proceedings5. Moreover, the entire proceedings would be conducted orally and the sentence administered would be pecunaria therefore Albus would receive some kind of monetary compensation for the disturbance of his household. If satisfied with the facts of the case and if a wrong is found to have occurred, the Praetor may issue restitutory interdicta which would include the means to restore Albus’ household as it was before the disturbance occurred, by Brutus making restitution and refraining from further injury. The Praetor would have the right, after examination of the circumstances of the case, to not only direct that Brutus should refrain from further injury to Albus but that the infected slave should be produced6 and returned to Brutus and compensation paid by Brutus for the injuries already caused. In the case of Decius however, Albus has not yet accepted the grain, but has followed the principle of caveat emptor and has taken the time to inspect the grain. Since the terms of the agreement that the two parties – Albus and Decius have agreed to on an consensus ad idem basis is that the product which will be supplied is wheat, Decius has violated the agreement by supplying rotten wheat and barley in part of the ox drawn carts. This case scenario therefore offers Albus better possibilities of recovery. On the one hand, he can simply refuse to receive the entire stock of wheat since it is not what he has asked for and agreed to buy. This would be a case where the rules of jus civile would be relevant and applicable, since the exercise of the caveat emptor principle by Albus could provide just cause for refusing to accept the shipment of purported wheat which is actually barley and rotten product. It is possible that Decius may contest Albus’ refusal to receive the goods on the grounds that he has incurred expense on transporting the items and not all of it is infected or bad; however in this case Albus has a good chance to win his case, even if it goes before a Praetor, because he can clearly show that the principles under which consensus ad idem were reached were violated by Decius. Therefore in conclusion, it may be stated that Albus has a better case of attaining justice in the case of his agreement with Decius. This is an instance where he can prevent losses to himself by refusing to accept the grain since he has not yet paid for it. In the event he has already paid, it still appears likely that a Preator will find that he has been cheated and require Decius to make retribution for the losses by paying back to Albus the money that was paid for unusable wheat. However in the case of the agreement between Albus and Brutus, the outcome does not appear to be that certain. Unlike the situation as it exists with Decius, Albus has already accepted the infected slave into his household. Furthermore, he has also violated one of the terms of the contract in accepting the slave before a price was set by Cassius. Under Roman law, the administration of justice was governed by very strict tenets and the principle of consensus ad idem indicated that the terms of the agreement were mutually agreeable to both the parties. Once such terms had been set out, it was up to the parties to adhere to them. While Brutus did not adhere to the terms and sent the slave earlier, Albus would have had a better case if he had refused to accept the slave until Cassius had set the price. Furthermore, Albus did not follow the principle of caveat emptor in this case as he did in the case of Decius. Roman law was premised upon the principle that when a buyer purchased goods, he accepted full responsibility for them and no recoveries could be made once the good had been accepted into the buyer’s position. Therefore, it is possible for Brutus to argue that Albus now has to accept the goods, i.e, the slave in the condition he is in, because he did not choose to wait until Cassius set the price and so violated the agreement, neither did he choose to thoroughly inspect the slave beforehand. Since Albus is also at fault in this transaction, this may limit his recoveries. However, while Albus may not be eligible for any recoveries under the principles of jus civile which contains the tenets of civil law, he can approach the magistrates on the principles of jus praetorian or justice through equity. This may be possible in view of the fact that through the infected slave joining his household, the health of his other slaves has also been affected as a result of which he wishes to return the property to Brutus. Since there has been a disturbance of the condition of his household and he has suffered losses in terms of lost productivity of his slaves, there is a possibility that a Praetor may find that a wrong has occurred. The Preator may find that Brutus has wrongfully caused losses to Albus by deliberately inflicting a diseased slave on him and may order him to compensate for the injury – not only by taking back the slave into his possession but also compensating Albus for the injuries that he has suffered through disturbance of his household and lost productivity of his slaves. Bibliography * “Actions of Law: Law of XII the Tables” [online] Retrieved August 25 from: http://translate.google.com/translate?hl=en&sl=es&u=http://html.rincondelvago.com/acciones-de-ley-en-roma.html&sa=X&oi=translate&resnum=9&ct=result&prev=/search%3Fq%3DJudicio%2Bpostulatio%26hl%3Den%26sa%3DG * Innes Clark Hare, John, 2003. “The Law of Contracts” The Lawbook Exchange Ltd Read More