Roman Law vs Philippine Law on Contracts

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ROMAN LAW vs PHILIPPINE LAW

CONTRACTS

Ancient Roman State was an Aristocratic community controlled by the Senate.

The knowledge of law was confined with the Aristocracy and it is the SACERDOTE PUBLICI (Pontiffs) who performed public rites

Lawyers later knew about the TWELVE TABLES.

During the Justinian time, contracts were classified as consensual, real, verbal and literal.

ELEMENTS

Of

CONVENTION /PACTUM

ROMAN LAW

REQUISITES OF A VALID CONTRACT

1

Slaves unless authorized by the master

Enter into a CONTRACT

Infants below seven and minors below 25.


Insane


Deaf and Dumb


Person under potesta


Married women under the Patria Potesta of their husband


Aliens


1] Offer and acceptance

2]Declaration of will or intention of the parties

3]Will must be voluntary, actual free from fraud, force, fear, error or ignorance

1] Offer and acceptance

2] Declaration of will or intention of the parties

3] Must be voluntary, free of fraud and force

4] Force = Physical Force

5] Threatening

6] Property obtained by duress or intimidation entitled aggrieved party to recover damages

7] Agreement with fraud is VOIDABLE

8] If Fraud is employed by a third person agreement is not affected.

9] The presence and absence of fraud depends on the intention of the parties

10] Provision in the contract that one is exempt or immune from consequences of dolus is not permitted.

11] Fraud may either be malicious (Dolus Malus) or excusable (Dulos Bonus)

12] If there is false representation in the sale of a slave or if the later skill is misrepresented by, the buyer can ask for the rescission of sale plus damages

13] If the buyer is not advise of the defects of the thing sold to him the seller shall pay all the damages sustained

14] If there is mistake and the mistake is material, there is no agreement there being no meeting of the minds. If the mistake is not essential the same does not make the contract void

15] Essential error may either be an error to the subject matter of the contract or an error as to party to the contract, or error as to the character or nature of the contract

Object or subject matter of the contract must be one that exist or capable of being performed. It must not be contra bonus mores or prohibited by a positive law.

Vinculum juris (cause)

Refers to the purpose, legal cause or reason why the contract was entered into.

ROMAN LAW


2

Form

ROMAN LAW


3

This becomes essential only if agreed upon by the parties and if it is recognized by law.

ESSENTIAL ELEMENTS

PRESENT LAW

Essential Elements of Contract

1

NATURAL ELEMENTS

PRESENT LAW


2

ACCIDENTAL ELEMENTS

PRESENT LAW


3

PRESENT LAW

PERFECTION of a CONTRACT

CONSENSUAL CONTRACT

REAL

CONTRACT

FORMAL CONTRACT

CONSENT

CONTRACT

OF SALE

DELIVERY

DEPOSI T &

PLEDGE

FORM

PRESENT LAW


It is the meeting of minds between parties on the subject matter of the contract.

Article 1319

Consent is manifested by the meeting of the offer and the acceptance upon the thing, and the cause which are to constitute a contract. The offer must be certain and the acceptance absolute. A qualified acceptance constitutes a counter offer.

Two or more persons must be capacitated

PRESENT LAW

REQUISITES OF A VALID

1

No vitiation of consent

PRESENT LAW


2

No conflict between what is expressly stated and what is really intended

PRESENT LAW


3

PRESENT LAW


Article 1330

A contract were consent is given through mistake, violence or intimidation is voidable.

PRESENT LAW


Article 1331. In order that mistake may invalidate consent it must refer to the substance of the thing which is the object of the contract or to those conditions which have principally moved one or both parties to enter into a contract.

1

1

Must be present when the contract was entered into

PRESENT LAW

1

Must be true

2

Must be lawful

3

PRESENT LAW

Article 1350.

In onerous contract the cause is understood to be, for each contracting party the prestation or promise of a thing or service by the other; In remuneratory once, the service or benefit which is remunerated; and in contracts of pure beneficence, the mere liberality of the benefactor

CONSENSUAL CONTRACTS

LOCATIO-CONDUCTIO

EMPTIO-VENDITIO

SOCIETAS

MANDATUM


EMPTIO - VENDITIO

{Sale}

This is the equivalent of a contract to sell which is of course different from contract of sale.

In Roman Law, it is a contract to deliver to another for a price the undisturbed possession of a thing. ELEMENTS: Res, Price and Form

The moment the parties have agreed on the thing and the price they are bound by their agreement.

ROMAN LAW

EFFECTS OF

Until delivery or the payment of the agreed purchased price, the ownership of the thing sold is not transferred.

ROMAN LAW

EFFECTS OF

If the sale is perfected the risk passed to the buyer unless otherwise stipulated.

ROMAN LAW

EFFECTS OF

Fruits or accessions on the property after the accession of the contract will be delivered by the seller to the buyer.

ROMAN LAW

EFFECTS OF

Fruits or accessions on the property after the accession of the contract will be delivered by the seller to the buyer.

ROMAN LAW

EFFECTS OF

A contract of sale is perfected as soon as there is meeting of minds upon the thing and upon the price.

NEW CIVIL CODE

EFFECTS OF

From that moment the parties may reciprocally demand performance subject to the requirement of the form of contracts.

NEW CIVIL CODE

EFFECTS OF

Sale being a consensual contract is perfected by mere consent. Therefore, delivery or payment is not essential for perfection. Upon delivery or payment the sale is considered perfected.

NEW CIVIL CODE

EFFECTS OF

To deliver the OBJECT OF THE CONTRACT

NEW CIVIL CODE

OBLIGATIONS OF THE SELLER

ROMAN LAW

1

To WARRANT

NEW CIVIL CODE


ROMAN LAW

2

To PRESERVE the thing from perfection up to delivery

NEW CIVIL CODE


ROMAN LAW

3

To warrant buyers peaceful possession

NEW CIVIL CODE


ROMAN LAW

4

To pay for the expenses of the Deed of Sale, unless otherwise stipulated

NEW CIVIL CODE


ROMAN LAW

5

If the object is loss before perfection, the seller bears the loss following the Latin Maxim Res Perit Domino

NEW CIVIL CODE

Who bears the risk of Loss

ROMAN LAW

1

If the object is loss after perfection but before delivery, buyer bears the loss

NEW CIVIL CODE


ROMAN LAW

2

If the object is loss after delivery buyer bears the loss he being already the owner.

NEW CIVIL CODE


ROMAN LAW

3

Under Roman Law the guaranty of the seller is to make the buyer the undisturbed possessor of the thing

Warranty Against Eviction

ROMAN LAW

1

REMEDIES:

ACCION REDHIBITORIA rescind the contract and recover purchase money

AESTIMATORIA the buyer may reduce the purchase price in proportion to the effects discovered

Under the new Civil Code the Seller is bund not only to make the buyer the undisturbed possessor of the thing but to make the buyer the owner of the property.

Warranty Against Eviction

New Civil Code

1

To pay the price

OBLIGATIONS OF A BUYER

ROMAN LAW

1

To receive delivery


ROMAN LAW

2

To reimburse the seller for keeping the thing sold


ROMAN LAW

3

To pay the price occasioned by lesion


ROMAN LAW

4

To sue the specific performance plus damages ( Art. 1191)

To sue for rescission of Contract plus damages ( Art. 1191)


1

New Civil Code

To suspend payment of the price in some cases ( Article 1590)

To refuse to accept the goods in some cases (Art. 1599)


21

New Civil Code

To sue for damages (Art. 1599)

To ask for reduction of the price in some cases (Art. 1599)


3

New Civil Code


LOCATIO CONDUCTIO OPERARIUM

{HIRE/LEASE}

A Contract whereby a person (locator) gives his services to another (conductor) for a fixed consideration. Hence skilled professionals cannot enter into this kind of contract. They are supposed to do their work for free but entitled to honorarium.

Agreement of the Parties

With Just Cause

Termination of Lease Contract

1

ROMAN LAW

Expiration of the period agreed upon


2

ROMAN LAW

Merger of titles of both parties of the same person


3

ROMAN LAW

Destruction of the subject matter in the same contract


4

ROMAN LAW

Destruction of the subject matter in the same contract


1

ROMAN LAW


SOCIETAS

{PARTNERSHIP}

This is a contract of partnerhip. As it was understood then, and now, societas is a contract whereby two or more persons agree to put something, whether a res corporalis or services to a common fund so they may be able to participate in the resulting profit or loss.

Contribution

Share of partnership profits and loss

Intention to form partnership

Lawful object

Requirements of Societas

1

Societas Omnium Bonorium

A partnership whereby two or more persons were to share all the things in common.

Kinds of Societas

1

Societas Aliculus Negotionis

A partnership which is organized for a particular purpose.

Kinds of Societas

2

Societas Ominum Quae Ex Quaestu Veniunt

A partnership where only the property invested in the business belonged to the firm.

Kinds of Societas

3

Societas Rei Unius

A partnership in a single thing

Kinds of Societas

4

Societas Certarum Rerum

A partnership in certain things

Kinds of Societas

5

If all partners entered into a contract with a third party all of them could sue and be sued on it

Rights and Liabilities of Third Parties

1

ROMAN LAW

If only a partner entered into a contract in his own capacity he alone is liable


2

ROMAN LAW

If a partner entered into a contract on behalf of the partnership the latter could not sue the contract but it can be secured the benefits because the partner who made the contract can be compelled to cede his rights of action to his co-partners.


3

ROMAN LAW

If a partner acting within the scope of his apparent capacity receives money or property of a third person and misapplies it the partnership is bound.


1

New Civil Code

If a partnership in the course of its business receives money or property of a third person the money or property so received is misapplied by any partner while it is in the custody of the partnership the partnership is bound. (Art. 1828)


2

New Civil Code

If through the wrongful act of a partner acting in the ordinary course of partnership business loss of injury is caused to any person the partnership is liable. The partners and the partnership are solidarily liable without prejudiced with the rights of recovery from the guilty partner


3

New Civil Code

If one represents himself of a partner or an existing partnership when in truth or in fact he is not a partner and by reason of misrepresentation a third person is misled the partnership is liable if it consented to the misrepresentation.


4

New Civil Code

A person admitted as a partner in an existing partnership is liable for all the obligations of the partnership arising before his admission as though he has been a partner when such obligations were incurred except that his liability shall be satisfied only out of partnership property unless there is stipulation in the contract.


5

New Civil Code

Dissolution of Partnership

Roman Law

EX PERSONIS

EX

ACTIONE

EX

REBUS

EX

VOLUNTATE

Death


1

Roman Law

EX PERSONIS

Capatis Des Demenutio

Forfeiture of Property to the Fiscus

Bankruptcy

Judicial Dissolution


2

Roman Law

EX

ACTIONE

Accomplishment of the purpose of partnership


3

Roman Law

EX

REBUS

Purpose becomes impossible

Expiration of the term of partnership

When the thing in question cease to exist

Retirement of a partner which must be based on a serious and reasonable ground.


4

Roman Law

EX

VOLUNTATE


Termination of Specified Term

New Civil Code

Art 1830

Express Will of the Partner

Expressed will of the partner except those who have assigned


Expulsion in Good Faith of a member

New Civil Code

Art 1830

Withdrawal

Unlawfulness of the business

Loss of the Specific Thing promised


Death of any partner

New Civil Code

Art 1830

Insolvency of any partner

Civil Interdiction of any party

Dissolution by virtue of a final judgment

MANDATUM

It is a contract whereby the mandatory requests, without compensation, the mandatory to do or to give something, either for the benefit of the mandatory or for some third person, and the mandatory promise to do so.

The object of the contract must be lawful.

Elements of Mandatum

1

Roman Law

Lawful Object

The mandatory must give interest in the thing to be done by the mandatarius

Elements of Mandatum

1

Roman Law

INTEREST

For the benefit of the principal alone. The latter may request the agent to conduct his business or to buy a land for him.

Kinds of Mandatum

1

Roman Law

Mandatis Gratia

For the benefit of the principal and the agent. The principal requests that the agent should lend the money to somebody whom he nominates.

Kinds of Mandatum

2

Roman Law

Tua Et Sua

For the benefit of a third person. The principal requests the agent to manage the business of his friend.

Kinds of Mandatum

3

Roman Law

Aliena

For the benefit of the principal and the third person. The principal requests the agent to manage a property owned jointly by him and his friend.

Kinds of Mandatum

4

Roman Law

Suat Et Aliena

For the benefit of the agent and a third person.

Kinds of Mandatum

5

Roman Law

Tua Et Aliena

The agent may refuse the appointment but he is required to renounce the same as soon as possible in order that the business can be carried through in some other ways.

Can the agent refuse Appointment?

Roman Law

If the renunciation is late, the principal can maintain an action against the agent unless the agent offers a legal excuse. (Illness of the agent or bankruptcy of the principal)


Roman Law

One may refuse to be an agent. However, if a person declines an agency, he is bound to observe diligence of a good father of a family in the custody and preservation of the goods forwarded to him by the owner until the latter should appoint an agent.


New Civil Code

REAL CONTRACTS

Real contracts are perfected by delivery.

It may be nominate or innominate.

NOMINATE REAL CONTRACTS

MUTUUM

PLEDGE

DEPOSITORIUM

COMMODATUM


MUTUUM

SIMPLE LOAN. This is still in the New Civil Code. It dealt only with the fungible things which are reckoned by number, or measure. In mutuum, the borrower became the owner of the res and therefore, the obligation to return an equivalent in kind is not extinguished by the loss of destruction of the thing borrowed.


COMMUDATUM

It is a gratuitous loan of a res for the use of a borrower. What was received by the borrower is merely de facto possession of a res. The borrower therefore could not lawfully use the thing borrowed for a purpose different from that of which it was lent. He cannot allow others to use it. Losses in the case of misuse are shouldered by the borrower.


DEPOSITUM

Bailment of safekeeping of anothers property without remuneration and to be returned on demand.


PLEDGE

Real right which enables the pledgee to retain possession of a thing as a security for the payment of the obligation. Ownership is not transferred.

Pledge and Mortgage

PLEDGE

It is constituted on personal property.

(Art. 2094)

The pledgor must deliver the property to the creditor, or, by common consent, to a third person. (Art. 2093)

It is not valid against third persons unless a description of the thing pledged and the date of the pledge appears in a public instrument. (Art. 2096)

REAL MORTGAGE

It is constituted on real property. (Art. 2124)

As a rule, the mortgagor retains the

property.

It is not valid against third parties if is not registered.

Under the law of the 12 tables, the legal rate of interest was fixed at 10% per annum. A century later, this was reduced at 5% per annum. During the time of Cicero and the Empire, the legal rates of interest was 12% per annum.

ROMAN LAW

Interest must be expressly stipulated in writing. Hence, if there is no written agreement that interest will be paid, no interest can be charged.

NEW CIVIL CODE

Rules governing interest are found in the New Civil Code, in the Usury Law, and in Central Bank Circulars approved by the Monetary Board.

2. If there is an agreement that interest will be paid but no rate was mentioned, the legal interest, which is six per cent per annum, shall be charged.

INNOMINATE CONTRACTS

AESTIMATUM

PERMUTATIO

PRECARIUM

DONATIO SUBMODO

COMPROMISE


PERMUTATIO

{BARTER}

A gives typewriter to B on account of Bs promise to give A a Betamax.


AESTIMATUM

{CONSIGNMENT}

Z entrusted his ring to B in order that B can sell it.

B s obligation is to account for the proceeds of the ring or to return it when not sold.


DONATIO SUBMODO

{CONDITIONAL GIFT}

M gives something to N on the condition that B will do something for A.


PRECARIUM

{PERMISSIVE OCCUPANCY}

The tenant if, permitted to occupy a property can exclude others from usurping hi possession except as against the owner.


COMPROMISE

Amicable settlement of the controversy.

FORMAL CONTRACTS

DOTIS DICTIO

STIPULATIO

ISIURANDUM LIBERTI

EXPENSILATIO

FORMAL CONTRACTS

STIPULATIO

This is a contract made through question and answer. If this is reduced in writing, it is presumed that the promise was a result of a proper stipulation by question and answer. An evidence could, however be given to prove that what had been written was merely an informal understanding.

FORMAL CONTRACTS

DOTIS DICTIO

This is a contract whereby a woman or debtor binds himself or gives a special verbal declaration to pay a dos.

FORMAL CONTRACTS

ISIURANDUM LIBERTI

This is also one-sided declaration whereby a newly freed slave undertook to perform services for his former master.

FORMAL CONTRACTS

EXPENSILATIO

It is used to create an obligation for the first time or to novate a pre-existing agreement.

EPI MA. KASSANDRA DAJAO

FAITH LUBERAS

LLB-LO2

10 July 2015

NEW CIVIL CODE

COMPILED BY

ROMAN LAW

Roman Law vs Philippine Law on Contracts

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