Actio praescriptis verbis
In Roman law, the actio praescriptis verbis was a type of action for innominate contracts , so-called "unnamed contracts". Insofar as subsumption problems arose when choosing the correct type of action, the formulas were designed according to the situation of the individual case ( actio in factum ), but followed the established scheme bonae fidei iudicia .
Basically, in Roman contract law, type constraint prevailed, which limited the number of possible binding transactions. The freedom of contract enshrined in modern legal systems was of secondary importance to the Romans. The Roman actiones are based on twelve specific contracts, which have been divided into four groups in a final number as contractual obligations . In addition to real contracts (loan, custody, pledging) there were verbal contracts ( stipulation , dowry commitments), literal contracts (novations of debt contracts in loan liabilities) and consensual contracts (purchase, rent, lease, service and work contracts as well as orders and company law). However, anyone who had provided services outside of a type-specific contract and was disappointed by their contractual partner's behavior contrary to the agreement could not insist on fulfillment. He only had the right to reclaim the contractual services he had provided ( condictio ob causam datorum ). A rethink began here in the post-classical phase . Anyone who had already performed in advance should be able to assert contract performance claims in addition to conditions. The praetor formulated the individual case for the process formula by leaving out the type of transaction and instead describing the facts at hand.
According to an example from Ulpian , Digesta 19, 5, 19 pr. ring:
“ You asked me for a loan; since I had no money, I gave you a thing for sale that you should use the proceeds. If you have not sold them at all or have sold them but have not received the money intended as a loan, then it is safer to complain with preceding formula words, as if we had concluded a deal of a separate type of contract with each other. "
Atypical contracts and mixed-type contracts , such as the junk contract ( contractus aestimatorius ), purchase commissions for fixed prices or the release of slaves in the case of mutual ownership and exchange relationships fell under the litigation formula .
Individual evidence
- ↑ a b c Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 153 f.
- ↑ a b Ulrich Manthe : History of Roman Law (= Beck's series. 2132). Beck, Munich 2000, ISBN 3-406-44732-5 , pp. 92-94.
- ↑ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 260 ff.
