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