CONSENSUAL CONTRACTS

Se forman por el solo acuerdo de las partes. Se derivan del derecho de gentes. Son

of frequent use and Civil Law does not require any formality for them.

It can be formed among the absent. The parties can consent by letters or

messengers.

The consensual contracts are: Sale, lease, partnership and the

mandate.

The sale, the lease, and the partnership are perfect bilateral contracts. The mandate

it is an imperfect bilateral contract, just like the loan for use, the deposit, and the pledge. They are

sanctioned for good faith actions.

THE SALE:

It happens when two people agree that one must ensure the other is free.

full and peaceful possession and enjoyment of a specific thing, through payment

of a price set in money.

The seller is the one who owes the thing, he has made a Venditio. He can exercise the action.

sold or previously sold against the buyer to force them to pay the price.

The buyer is the one who owes the price. The operation of the buyer is called Emptio.

Exert the action empti or ex empto against the seller to compel him to execute it.

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Training and Essential Elements of Sales.

The sale is a consensual contract, perfected when the parties are in agreement.

about the thing sold and the price. No written document is required, except as proof.

If the parties understand that they want to make the sale in writing, Justiniano establishes

two innovations:

For the sale to be perfect, it is necessary for the document to have been drafted and

the subscription of the contractors.

2) If earnest money (amount of money or a precious object) has been given, it has been done

Whether stated in the contract or not, the parties cannot retract.

The agreement of the parties must relate to the thing sold and the price.

Regarding the thing sold, anything that is capable of entering into the patrimonio.

from individuals can be the subject of sale. Whether it is a tangible or intangible thing:

a servitude, a credit, an inheritance, but not a future inheritance.

The sale of someone else's property is valid but the seller is obliged to ensure the ownership.

what to the buyer.

The price must be in minted money, that is true and serious. (Pecuria Numerata).

From there, the sale of the change is distinguished.

Effects of the Sale.

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Seller's obligation.

• Deliver free and lasting possession

• Guaranteeing it against eviction, that is, against attacks from third parties and that

the compensation in the event that the matter is legally settled.

• That guarantees him against hidden defects of the thing

The delivery is made by the owner seller and pertains to a necessary thing.

The seller transfers the ownership to the buyer. The item must be delivered with its

accessories.

The empty action for the buyer penalizes the obligation of guarantee if the

the buyer has suffered a harm that implies a lack of right in the seller.

The contract remains valid, there is only non-performance of the seller's obligation.

the buyer is owed damages and interests.

By the action ex stipulatu, the buyer has the right to the stipulated amount, for

The empti action receives a compensation regulated equitably by the judge.

The buyer has the obligation to pay the seller the price.

agreed, with the interests from which he enjoys the sold item. The seller

it has the action venditi. It can only compel you to pay upon maturity and if this has

delivered the thing.

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Against the insolvent buyer, the seller had:

◼ Right of retention

◼ Right of reclamation

◼ Right to reserve a mortgage on the sold item and the lex commissoria with

which had the right to terminate the contract, with the help of a clause

especially at the time of the contract.

THE LEASE:

It is a contract whereby one party commits to another to provide enjoyment.

temporary of something, or to perform certain work for it in exchange for remuneration

of money called merces.

The one who is obliged to supply the thing is the locator, makes a locatio and has against

the other part the action locati or ex locato. The one who owes the rental price or payment

He is the driver, he makes a conduction and can exercise the action against the locator.

conduct or ex conduct

In Roman Law, there were two types of Lease.

The lease of things: Locatio rerum

The lease of services: Locatio operandum or operis

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In the late empire, the renting of things had a special character and became

a contract with its own rules called THE EMFITEUSIS CONTRACT.

Formation of the Emphyteusis Contract: It is a perfect contract with consent.

of the parties. The writing and the earnest money can be used as means of proof. The

the agreement of the parties must focus on the thing object of the lease and on

the price.

The object could be movable or immovable, corporeal or incorporeal.

The following were exempted: The servitudes could not be leased without the

land to which they belonged and the things that are consumed with use unless

they are leased as certain bodies.

One could lease someone else's property. The price has the same characteristics as the sale.

must consist of money, but when it was the lease of a piece of land, the

the price could be set in kind. The price must be serious.

Obligation of the Landlord:

He must ensure the tenant's use and enjoyment of the property during the lease.

The landlord has a credit right against the tenant.

The landlord must deliver the thing. That delivery only gives the tenant the

detention of the thing. It is a naked traditio.

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The landlord must guarantee the tenant against eviction and must compensate.

if the leased property is alienated.

Must guarantee for hidden defects. The landlord is responsible for their deceit.

and its absence. Not responsible for unforeseen cases. The tenant has the action.

conduct

Obligation of the Tenant:

Pay the agreed price and must transfer its ownership to the landlord.

The price is not a fixed amount, it can be made in a series of payments.

periodic payments called pensions are generally required at the end of each year. Ceases to be owed.

when the lease or enjoyment ends without fault on their part. Upon expiration of the lease

he is obliged to return the leased item. The landlord has a claim against the tenant.

the locati action.

Leasing, unlike selling, only provides the tenant with enjoyment.

temporal of the rented thing.

Causes that terminate the Lease:

◼ The expiration of the agreed time, usually 5 years, unless

there would be an implicit agreement between the parties called tacit renewal.

◼ The loss of the leased property.

◼ The mutual dissent or agreement of the parties to terminate the contract.

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◼ The cancellation obtained by the landlord when the tenant abuses the enjoyment.

or stays 2 years without paying the dues and when he wants to recover the thing to

to inhabit it.

The Emphyteusis:

It is a special contract created in the Late Empire, by which it was granted to

perpetuity of the enjoyment of a piece of land to a person through an annual rent.

difference of lease because it has a limited duration and periodic rent and

from the sale because although it implies a perpetual concession of the thing, it is at a price

unique.

The emphyteusis obliges the owner to provide the tenant with enjoyment of the thing.

rented. The tenant is obliged to pay the rent called Pension or Canon;

acquires a real right over the thing: the right of emphyteusis.

THE SOCIETY.-

(Seen as an Association), it is any gathering of people who aim to achieve

a common end.

The partnership is a consensual contract by which two or more people

they commit to putting certain things in common to derive a benefit from them

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appreciable in money. All members are subject to the same obligations,

sanctioned for the same action: The action pro partner.

Formation and Elements of Society:

This contract is perfect by the simple agreement of the parties, even before they

put together the assets that are going to be managed. The contractors can

freely suspend the association or limit it in duration for a term or

a condition.

Essential Elements of Society:

◼ That the partners commit to putting certain goods in common. If not...

They all would make a Donation, not a Society. It doesn't matter that the assets belong to

distinct nature.

◼ The end must be a lawful and common result. It is about obtaining a

economic utility. If its purpose is illegal acts, it is null.

The partners had the right to entrust the arbitration to a designated third party, which

must fulfill its mission equitably under penalty of attacking it in justice.

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Classes of Societies.

◼ Universal Societies. They have in common the characteristic of encompassing universality.

or a proportional part of the assets of the members.

◼ Particular Societies. The associates pool together objects.

particulars.

Effects of Society.

Contractual obligation, produces the same obligation for the associates, sanctioned

for the pro-socio action.

◼ Each member must provide what was promised.

◼ He must handle the common business and communicate the results to his associates.

its management,

◼ They respond of their wrongdoing and their guilt.

Causes of the dissolution of the Company.

◼ The arrival of the fixed term or the condition.

◼ The loss of the social fund

◼ The death of one of the associates.

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THE MANDATE

It is a contract by which one person commissions another who accepts to carry out

free of charge a specific act or several operations.

The one who gives the mandate is called the mandator, madator, or dominus. The one who receives the

The mandate is called a mandate holder, proxy. The powers entrusted to the mandate holder.

They could be more or less wide.

Formation and Characteristics of the Mandate:

This contract is perfect by the mere agreement of the parties. Consent can

to be given by any means.

Expressly (by words, letters, or messengers), or tacitly by not acting.

opposition.

Characters for its validity:

◼ It must be free; otherwise, it would be a service lease or contract.

unnamed. It was possible to compensate teachers, lawyers, and philosophers. The

remuneration was called honor.

◼ To have a lawful act as an object.

◼ It is necessary for the principal to have a pecuniary interest in the execution of the

mandate.

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 Unable to access external URLs to extract content for translation.
Consensual contracts are those that are formed by mutual agreement of the parties.
Boiled food or news.

Obligations arising from contracts in Roman Law (III): contracts

Prepared by: Eva R. García Martínez, MA.

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