Verbal contract
In Roman law , the verbal contract was an actionable contract of obligations that came about when the contracting parties formally declared each other orally .
The main application of the verbal contract was stipulation , the most common debt contract of the ius civile . It could have come from ancient augural practice . With simultaneous presence, the parties ( Roman citizens ) agreed on a performance promise in question and answer form ( conventio ). This performance promise could include unilateral legal transactions such as donation promises, guarantee agreements, granting of loans or novations under the law of obligations, but also mutual legal relationships such as the purchase and legal transactions outside the numerus clausus . Since the stipulation was a strictly unilateral legal transaction, mutual obligations were made subservient by means of two formal acts. Purchase contracts were carried out through a “goods manipulation ( performance )” and a “price manipulation ( consideration )”, each related to one another.
Verbal contracts were also agreed for guarantee purposes. This sub-case of stipulation showed the only difference that the guarantee ( sponsio ) was based on an accessory causal transaction by the main debtor, which was itself justified by stipulation. The surety was asked by the obligee whether he would promise the same as what the debtor had promised ( idem quod ... promisit spondesne? ), Whereupon the surety, identical to the obligee of the contract to be secured, acknowledged with spondeo (= I promise ).
Another verbal contract was the dictio dotis , a total promise (fiduciary transfer of the woman's property and dowry administration ) which, like the stipulation, did not contain an answer to the creditor's previous question. The recipient made no statement here, but tied himself nonetheless. The promising person formulated: dotis filiae meae tibi erunt sestertium milia centum (translated: you should receive 100,000 sesterces as a dowry for my daughter ).
One-sided was also the formal act of oaths committed by freedmen to please their protector ( patronus ) with services ( promissio operarum ).
Demarcation
In the Roman Code of Obligations it was necessary to distinguish the verbal contract from the consensual (informal declarations of intent), the real (surrender of a thing) and the literal contract (booking in the house book). Like the real and the litteral contract, the verbal contract goes back to the time of the late republic .
literature
- Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau study books) ISBN 3-205-07171-9 , pp. 208-211.
- Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 101.
- Ulrich Manthe : History of Roman law (= Beck'sche series. 2132). Beck, Munich 2000, ISBN 3-406-44732-5 , pp. 26-28.
Remarks
- ↑ a b c d e Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 208–211.
- ^ Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 101.
- ↑ Ulrich Manthe : History of Roman Law (= Beck'sche series. 2132). Beck, Munich 2000, ISBN 3-406-44732-5 , pp. 26-28.
- ↑ REAutor : Dictio dotis . In: Paulys Realencyclopadie der classischen Antiquity Science (RE). Volume V, 1, Stuttgart 1903, Sp. 390-392.
- ↑ Digest 46,3,80.
- ↑ Compare also: Max Kaser : Roman legal sources and applied legal method. in: Research on Roman Law. Volume 36. Verlag Böhlau, Vienna, Cologne, Graz, 1986. ISBN 3-205-05001-0 . P. 160 ff.
