Innominate contracts

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What were the innominate contracts? Where did they come from and why were they important? The very term innominate (literally âwithout name) is potentially confusing since these so-called contracts are named very specifically. The term refers to their place in the system of classification of contracts in Roman Law rather than their possessing the characteristic of being unnamed. A distinct characteristic of Roman Law is that it might be said to possess a law of contracts as opposed to a law of contract.

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The latter is far more familiar to the modern legal scholar. In most current jurisdictions there is a unified concept of that which constitutes a contract. For example, in the UK, the existence of a contract is determined by a “checklist” of common factors: offer, acceptance, intention to create legal relations, certainty etc. This is not so in the Roman code which possessed instead a list of varieties of contract. This gave rise to a need for classification of contracts according to type. Thus, jurists such as Justinian divide contracts into categories such as Real and Consensual which are further sub-categorised. The innominate contracts are in effect defined by their inability to fit into such established categories and their identification is therefore negative in character. Therefore, to begin to understand the place of the innominate contracts in Roman Law, it is necessary briefly to consider the nature and extent of their named cousins. The Real Contracts according to Justinian consisted of:

  • Mutuum – essentially a loan but with the expectation that the item in question would be consumed and therefore repayment would be by means of an equivalent item or its value;
  • Commodatum – a loan for use only;
  • Depositum – a loan for safekeeping but not for use; and
  • Pignus – the provision of security by the transfer of possession of an item.

The Consensual Contracts are more familiar in character to the modern lawyer and consist of:

  • Emptio Venditio – the traditional contract of sale requiring certain specific elements – the thing, the price and consent;
  • Locatio Conduction – this is frequently translated as “hire” but covered contracts as diverse as a lease of land and a contract of employment;
  • Societas – this is the familiar contract of partnership whereby individuals agree to co-operate together for a common purpose but could have a wider application such as an agreement to contribute to the costs of a journey; and
  • Mandatum – this was an unusual species of contract in which one party agreed gratuitously to perform services for another; the absence of the traditional elements of bargain and consideration underlines the ability of Roman Law to characterise as a contract an arrangement which would not fall within any definition provided by a unified code of contract.

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