Roman Law and the Legal World of the Romans

Contracts

Republic, the law was changed slightly to allow a defendant in a stipulatio case to plead that the original agreement had been made under duress or by fraud, but most of the problems remained. Consensual contracts were all “bilateral.” That is, the parties were obligated to each other, though not necessarily in exactly parallel ways. As a result, they were judged on the basis not of “strict law” but of “good faith” ( bonae fidei ). This allowed the trial judge to ignore unnecessary technicalities or trickery, and to recognize partial performance of duties and grant a fraction of the value of the contract in damages. In time, the good faith standard came to be understood to imply certain terms in all agreements of a given type. For instance, it was eventually the case that a seller of goods had to give a warranty of title. That is, if the objects turned out to be someone else’s property, then he would have to reimburse the buyer (since the original owner would still be considered the true owner and so could recover the goods in question). This is an advance over the stipulatio and its strict-law implications, but consensual contracts had problems of their own. First, they demanded more of the judge’s input than might be desirable (as discussed earlier). Second, being entirely with out forms, these contracts were, if anything, harder to prove than stipulationes . The same problem actually appears in the law of marriage (Chapter 17); it too was defined primarily by consent (rather than by, say, a license or ceremony), making it difficult to prove whether someone was married. In general, the Roman jurists seemed to have had little interest in purely

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