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Roman Law Knew the Notion of Cause of Contractual Obligations (Consideration in Contract) after all!

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    • Abstract:
      In theory of contract law relatively not too much attention has been paid to the question whether Roman law knew the notion of consideration in contract (causa), reason for which one undertakes contractual obligation or not. It is generally admitted that Roman jurists used the term causa in various meanings. However, we haven't known too much about the specific contexts in which they used this term, since until 2008 there hasn't been a sole article in our literature of Roman law dedicated profoundly enough to this issue. The many different meanings that Roman jurists attributed to causa each served specific legal function. The aim of this paper is to identify the legal functions of causa in Roman law. In that pursuit, the author analyzes the issue of causa through the lens of a researcher whose main field of occupation is not the study of Roman law of contract but of the contemporary one. From the wide range of different meanings of causa in Roman law, the following could be pointed out. First and foremost, it meant the so-called iusta causa, legal title of acquiring a right in rem or possession. In this meaning the notion of causa leaves the realm of the law of contract and pertains to a branch of law that could be designated as the law of property. Secondly, Roman lawyers used the term causa in the meaning of causa obligationis, a set of facts from which an obligation emerges, today called source of obligation. These are the meanings causa had in Roman law that differ from the contemporary meaning of causa, as a reason, consideration of contractual obligations. However, in Roman law causa had some other meanings too -- it served certain functions in the law, which converge the Roman notion of causa to the contemporary one. Namely, classical Roman law analyzed the adequacy, appropriateness of reasons for which a specific legal act is created (causa negotii). In this respect the manumissio, the act of liberation of a slave and the the prohibition for spouses to present gifts to each other are perhaps the most indicative. One may conclude that in this respect causa served in Roman law a similar function as the motives, subjective reasons of entering in a legal transaction in the contemporary law. From the causa of legal act (causa negotii) Roman law developed specific terms, subcategories of causa. These are the notions of gratuitous cause (causa lucrativa) and unjust cause (turpis causa). Their function was to give a certain qualification to the legal act in question. The most subtle meaning of causa in Roman law was the meaning of causa prestationis, reason why parties to a bilateral contract undertake contractual obligations (consideration in contract). In this respect it is important to stress that Roman law had not developed ? general notion of contract. It knew only for classes of contracts, which system leaves to parties lesser freedom of contract, since they couldn't change either the form or the content of a given type of contract. In such a rigid framework the notion of cause of contractual obligations is inseparably tied to the notion of cause of contract. There was no legal need for a separate notion of cause of contractual obligation at all, since the notion of cause of contract absorbed it. However, in classical, but even more in postclassical period of Roman law, one can witness a forceful development of pacta (informal agreements that do not fit into any class of contracts) and innominate contracts (informal contracts outside the classes of contracts in which one of parties, the one seeking remedy, already performed). The latter are of special importance in the present research, since they do not have a typified cause of contract, hence it deemed necessary to ascertain what might be the cause of contractual obligations in innominate contracts.… [ABSTRACT FROM AUTHOR]
    • Abstract:
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