What were the innominate contracts? Where did they come from and why were they important? The very term innominate (literally without 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. 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 “checklist” 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:
That said, the early law recognised the existence of the contracts verbis and literis whose essential character is evident from their names. It is the above system of classification which leaves room for other types of contract which do not conform with the requirements of any of the above classes. It might be said that Roman Law, like Nature, “abhors a vacuum” and this gave rise to the evolution of the innominate contracts. The four principal innominate contracts are those which have attracted the attention of commentators because of their practical importance.
It should be noted that the development of these types of contract was not uniform and occurred at various stages throughout the life of Roman jurisprudence. It is generally recognised that the emergence of these forms was to remedy perceived gaps in the codified law. For example, Nicholas suggests: “The four real and four consensual contracts, together with the contracts verbis and literis, exhaust the Institutional list of contracts, but the list leaves gaps and uncertainties. It leaves gaps because it excludes several common types of agreement, such as exchange or any agreement which calls for the payment of a reasonable price (e.g. an agreement for the making of repairs the extent of which cannot be exactly foreseen).
It leaves uncertainties because, while it may be clear that a given agreement is a contract, there is doubt as to the particular heading under which it should be placed.” This sentiment is echoed by Borkowski and du Plessis: “Their [innominate contracts’] development owes much to the fact that the number of contracts in Roman law was quite limited throughout much of Rome’s legal history.
The need was eventually felt to give certain agreements contractual force, even though they did not constitute any of the recognised contracts, as in the case of barter (permutatio) for example.” As elsewhere in Roman Law, the development of these forms of contract was linked to the need to identify an appropriate action to enforce a right. Thus in the case of a barter, the plaintiff would previously have been required to bring a condictio to recover property which had passed into the possession of the other party or even commence an action for fraud. The deficiency of these remedies was that, if successful, they restored the parties to the position in which they would have been had the bargain not been struck and took no account of the potential advantage to be derived from performance of the agreement. The common characteristic of innominate contracts is that they can each be said to be a species of agreement for some type of mutual service and in each instance there had been some fulfilment of the bargain by one or other party.
In this respect there might be found echoes in the modern doctrine of part performance.
Each of the four principal types of innominate contract will now be considered in turn. Transactio This was the compromise or informal settlement of a legal action. This should be contrasted with the formal settlement of such actions by means of stipulatio after which any express penalty contained therein could be enforced or an aggrieved party could sue on the basis of the stipulation. Difficulties arose, however, where there had been an informal compromise upon the performance of which one party had reneged. Accordingly, there developed the actio prescriptis verbis (“the action of the introductory words”) which was a general form of action.
It was through the use of this procedure that it came to be established that such agreements should be regarded as contractually enforceable provided that there had been some performance by one side. Thus it should be noted that Justinian did not create a new form of action; he simply gave recognition to principles which had already begun to evolve.
The importance of the acknowledgement of this type of contract is that it introduced certainty into situations where there might previously have been none.
A transactio could be entered into before judgment or even after judgment if there was some scope for uncertainty as to further developments, e.g. if the judgment was regarded as suspect for some reason or where the parties wished to limit their exposure to a further appeal. Interestingly, while Borkowski and du Plessis (Op. Cit., p.307) cite transactio as the first of the most important innominate contracts, Nicholas (Op.
Cit., passim) appears to ignore its existence altogether. This underlines the fact that the innominate contracts should not be regarded as a supplement to the existing system of classification but should be seen instead as a practical means of remedying lacunae in the law on an ad hoc basis. Aestimatum This parallels the modern commercial practice of “sale or return”.
A party entrusted possession of an item to another on the basis that if it were sold, the latter would account to the former for its value. This principle was developed to the extent that the remedy would not simply be available in the event of a sale and lack of remuneration but also in situations in which a time limit for sale or return was specified. Aestimatum is a good example of the necessary refinement of pre-existing principles.
As has been seen in the discussion above, this type of joint venture might arguably be covered by the defined contract of societas but the involvement of issues of possession as distinct from ownership or the transfer of title renders the latter mechanism – with its emphasis upon the concept of partnership – clumsy. Similarly, while recourse to mutuum may seem superficially to meet the situation, the element of the ability of the bailee to return the item with impunity places it outside this formal category.
This was significant in that it elevated agreements of exchange or barter to the status of contracts. It had previously been the prevailing view that no such contract was capable of amounting to a sale. However, it should not be supposed that every such agreement became a contract.
As in the case of the other innominate contracts, there was a strong emphasis upon some element of part performance with a requirement that some money must change hands as an integral part of the agreement. The advantage of recognising this type of arrangement as a contract lay in the fact that it became a duty to pass ownership. As a result, a transferee could sue in respect of any defect in title before the rightful owner began to enforce his rights. It may be observed that this represented a late recognition of this type of contract and the culmination of a classic dispute between the Sabinians (see Nicholas, Op. Cit., p.174) and the Proculians with the former asserting barter as contract and the latter suggesting that unless the price were in money it would be impossible to distinguish buyer from seller and determine the duties and obligations of the respective parties.
Thus the insistence of the money element in permutatio may be regarded as a form of compromise between these classically conflicting views.
This has its nearest parallel in the modern law in the formula of the tenancy at will. Precarium consisted of the gratuitous grant of the enjoyment of land or chattels.
However, the comparison is not exact because there will generally be some form of consideration – however nominal – for a tenancy at will. This is a useful example of the means by which innominate contracts came into being. It was Justinian who allowed the use of the actio prescriptis verbis (discussed above) in respect of this type of agreement thus paving the way for its inclusion in the category of contracts, albeit innominate. It should be carefully noted that the four examples given above are regarded as prime specimens of innominate contracts but the list is neither exhaustive or closed.
Nicholas  observes: “The more important types [of innominate contract] in fact have names such as permutatio (exchange) and aestimatum, but this must not be allowed to obscure the significance of innominate contracts, which lies precisely in the generality of the principle which they represent. For this principle goes a long way towards filling the gaps and resolving the uncertainties left by the system of typical contracts.”
In conclusion it is submitted that this represents a concise and cogent commentary upon the importance of innominate contracts. The rigid classification of contracts into particular types gave rise to a situation in which a perfectly valid agreement which ought to have been capable of being enforced through the mechanism of the law could fail merely by dint of the fact that an appropriate “label” had not been attached to meet the situation in question. The value of Justinian’s recognition of such further categories – albeit remaining without name – is to remedy this deficiency. It may be argued, however, that if Roman Law were to have developed a unified and generally applicable theory which allowed the identification of any agreement as a contract, such remedial work might not have been necessary.
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