Consensual agreement

from Wikipedia, the free encyclopedia

The consensual (also: Konsensualkontrakt ; lat. Consensu contrahi ) designated in Roman law a binding transactions, regardless of the compliance of a particular form, solely on the matching declarations of intent ( consensus ) of the parties was based. There was no need for an accompanying handover as with the real contract, or a booking as with the literal contract or a verbal formula as with the verbal contract .

The differences between the contract forms mentioned are documented for the first time in Gaius . Labeo already attests to the fact that consensual contracts were already recognized as a type of business obligation before the time of the high classic Gaius, as the late antique digests conveyed .

Establishment of contract

The contract systems of the ius civile were primarily geared towards standardized business purposes, which left little room for open contract design . Consensual obligations were thus limited to purchase ( emptio venditio ), rental, lease, service and work contracts ( locatio conductio ), company law ( societas ) and contract transactions ( mandatum ). Apart from the mandate, which was a strictly unilateral legal transaction, the other bonds were based on the consideration principle ( synallagmatic principle).

Informal agreements were recorded as nuda pacta . As a matter of principle, they did not grant any actionable claims, unless, in exceptional cases, they arose from unnamed contracts, the so-called innominate transactions . The actio praescriptis verbis was available for them. Only later - during the late imperial era - were they recognized as pacta praetoria by virtue of praetorical edicts , but without being included in the catalog of consensual agreements.

The principle of good faith bonae fidei iudicium was of particular importance in these binding transactions, since trust that was granted was a constitutive characteristic of the type of transaction, so no party should break its word. Violations of contract could be complained about . In the form process, the judge was given more freedom from legal consequences for the complaint formulas from consensual contracts, due to the requirement of "good faith" than, for example, for the strict legal complaints from stipulation . For example, the buyer of goods was entitled to actio empti to perform the purchase item, the seller to actio venditi to payment of the agreed purchase price. Accordingly, violated rental contracts could be brought to the judge's decision by means of the actiones conducti and locati .

Termination of contract

In modern Romance literature it is assumed that the contrarius consensus was recognized as a contract for the cancellation of the entire legal relationship of a sales contract . In some cases, it is based on the fact that not the entire debt (contract and the obligations arising from it) but only the individual liability has been canceled.

literature

Remarks

  1. ^ A b Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 224 f.
  2. ↑ Gaius 3, 89 ff., 128, 135 ff.
  3. ↑ Digest 50,16,19 ( Ulp. 11 ad ed.): It remains open with him whether imperfect bilateral contract types , for example the mandate , the deposit or the business form of the pignus , were equated with mutual contracts.
  4. ↑ a b Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 102 f.
  5. ↑ Digest 2.14; Codex Iustinianus 2,3.
  6. ^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 4 no. 16-21 (pp. 44 f.).
  7. ^ Max Kaser : The Roman private law. 2 volumes, 2nd edition. Beck, Munich 1971–1975 ( Handbook of Classical Studies; Dept. 10, Part 3, Vol. 3 ). Volume 1, p. 642; Wolfgang Kunkel , Heinrich Honsell , Theo Mayer-Maly , Walter Selb : Roman law . 4th edition. Berlin u. a. 1987, ISBN 3-540-16866-4 , p. 267.
  8. ^ Heinrich Siber SZ 42, 70.
  9. ↑ Rolf Knütel : Contrarius Consensus , 1968, p. 137: With reference to the Digest (Digest. 18, 5, 3 (Julian)) Knütel assumes that the Roman legal classics had no annulment contract for a long time and that contractual solutions were based on a simple fee law pactum solved; It was only with Julius Paulus that the contrarius consensus arose through interpretatio . See also: Werner Flume : Legal act and legal relationship: Roman jurisprudence and modern legal thinking. , Paderborn, Munich, Vienna, Zurich. Schöningh, 1990, ISBN 3-506-73356-7 . P. 45.