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This Concept Map, created with IHMC CmapTools, has information related to: 01 3 Agreements, contractus and pactum, Doesn't mean it's not enforceable as it can be used as a defence like Pactum de non petendo: agreement not to claim can be used as a defence, Law of contracts: Roman law closed system where, for a contract to be recognised, it had to comply with form requirements where Did not fully recognise freedom of contract, but could still decide when, with whom and which type of contract to institute, AGREEMENT, CONTRACTUS AND PACTUM where Contractus is an agreement enforceable with a personal action, Contractus is an agreement enforceable with a personal action where Writing is not always required, but is sometimes necessary for the purpose of evidence, Pacta was Derived from pacisci (to make peace) and the noun pax (peace), Certain types (clothed pacta/pacta vestita) were enforceable ie 3) Pacta legitima (statutory pacta) were recognised by the emperor like a promise to give a dowry, make a donation or the agreement between two parties to start arbitration, Agreement involves consensus or a meeting of the minds of at least two parties fixed on achieving creation of obligation but In RL, meeting of minds alone not sufficient to enforce agreement, AGREEMENT, CONTRACTUS AND PACTUM where Agreement involves consensus or a meeting of the minds of at least two parties fixed on achieving creation of obligation, Ulpian in Digest: if no valid cause exists, no obligation can come into being from agreement initially Ex nudo pacto non oritur actio: no action arises out of bare agreement, Change opposed by legalists who felt strongly that RL position should be abided by but in 17th and 18th centuries Ex nudo pacto oritur actio (an action arises out of bare agreement) or pacta sunt servanda (agreements are to be observed), 3) Contractus litteris: agreement formalised in writing and no validity and enforceability until written up; could even be in the form of entries in an accounting journal or by the drafting of a written proof of debt in terms of Hellenistic customs and 4) Contractus consensu: mere consensus is the basis i) Emptio venditio (sales) ii) Locatio conductio (lease of things, services, etc) iii) Societas (partnership) iv) Mandatum (mandate), AGREEMENT, CONTRACTUS AND PACTUM where Pacta, Pacta was An agreement that could not qualify as enforceable contractus, Not enforceable with a personal action ie nuda pacta (bare agreement) but Certain types (clothed pacta/pacta vestita) were enforceable, Derived from pacisci (to make peace) and the noun pax (peace) and Term was already in use by XII Tables, which stated that retribution for serious bodily injury only allowed where no pactum about compensatory settlement, Canon law: idea that word alone should be binding; let your yes be your yes and your no your no (Matthew) but Change opposed by legalists who felt strongly that RL position should be abided by, Certain types (clothed pacta/pacta vestita) were enforceable ie 2) Praetorian agreements or pacta praetoria or honoraria where praetor granted actions to make certain types of pacta enforceable eg constitutum (promise to pay debt) or receptum (promise to look after something), Contractus is an agreement enforceable with a personal action but Was this limiting?, Pothier: all that is required is serious intention to be bound and Modern law: general principle is that consensus is binding with requirements, In RL, meeting of minds alone not sufficient to enforce agreement instead Only enforceable if meeting of minds wrt to types of transactions that legally warrant recognition