CONTRACT

ROMAN LAW vs PHILIPPINE LAW

S

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

ROMAN LAW

REQUISITES OF A VALID CONTRACT

CONVENTION /PACTUM

Slaves unless
authorized by the
master

Enter into a CONTRACT

Infants below seven and

minors below 25.

Enter into a CONTRACT

Insane

Enter into a CONTRACT

Deaf and Dumb

Enter into a CONTRACT

Person under
potesta

Enter into a CONTRACT

Married women under the

Patria Potesta of their
husband

Enter into a CONTRACT

Aliens

Enter into a CONTRACT

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.

ROMAN LAW

REQUISITES OF A VALID CONTRACT

Vinculum juris (cause)

Refers to the purpose, legal cause or reason why the

contract was entered into.

ROMAN LAW

REQUISITES OF A VALID CONTRACT

Form

This becomes essential only if agreed

upon by the parties and if it is
recognized by law.

PRESENT LAW

Essential Elements of Contract

ESSENTIAL ELEMENTS

PRESENT LAW

Essential Elements of Contract

NATURAL ELEMENTS

PRESENT LAW

Essential Elements of Contract

ACCIDENTAL ELEMENTS

PRESENT LAW
PERFECTION of a CONTRACT

CONSENSUAL
CONTRACT

CONSENT

CONTRACT
OF SALE

REAL
CONTRACT

DELIVERY

DEPOSI T &
PLEDGE

FORMAL
CONTRACT

FORM

PRESENT LAW
PERFECTION of a CONTRACT

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.

PRESENT LAW

REQUISITES OF A VALID

Two or more persons

must be capacitated

PRESENT LAW

REQUISITES OF A VALID

No vitiation of consent

PRESENT LAW

REQUISITES OF A VALID

No conflict between what is

expressly stated and what
is really intended

PRESENT LAW
PERFECTION of a CONTRACT

Article 1330
A contract were consent is
given through mistake,
violence or intimidation is
voidable.

PRESENT LAW
PERFECTION of a CONTRACT

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
11 to enter into a contract.
parties

PRESENT LAW

1Must be present when the contract

was entered into

2 Must be true
3

Must be lawful

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

CONSENSUAL CONTRACTS
EMPTIO-VENDITIO
LOCATIO-CONDUCTIO
SOCIETAS

MANDATUM

CONSENSUAL
CONTRACTS
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

ROMAN LAW

EFFECTS OF

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.

NEW CIVIL CODE

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

ROMAN LAW

OBLIGATIONS OF THE SELLER

To deliver the OBJECT OF THE

CONTRACT

NEW CIVIL CODE

ROMAN LAW

OBLIGATIONS OF THE SELLER

To WARRANT

NEW CIVIL CODE

ROMAN LAW

OBLIGATIONS OF THE SELLER

To PRESERVE the thing from

perfection up to delivery

NEW CIVIL CODE

ROMAN LAW

OBLIGATIONS OF THE SELLER

To warrant buyers peaceful

possession

NEW CIVIL CODE

ROMAN LAW

OBLIGATIONS OF THE SELLER

To pay for the expenses of the

Deed of Sale, unless otherwise
stipulated

NEW CIVIL CODE

ROMAN LAW

Who bears the risk of Loss

If the object is loss before

perfection, the seller bears the
loss following the Latin Maxim
Res Perit Domino

NEW CIVIL CODE

ROMAN LAW

Who bears the risk of Loss

If the object is loss after perfection

but before delivery, buyer bears
the loss

NEW CIVIL CODE

ROMAN LAW

Who bears the risk of Loss

If the object is loss after delivery

buyer bears the loss he being
already the owner.

ROMAN LAW

Warranty Against Eviction

Under Roman Law the guaranty of

the seller is to make the buyer the
undisturbed possessor of the thing
REMEDIES:
ACCION REDHIBITORIA rescind the contract and recover
purchase money
AESTIMATORIA the buyer may reduce the purchase price in
proportion to the effects discovered

New Civil Code

Warranty Against Eviction

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.

ROMAN LAW

OBLIGATIONS OF A BUYER
To pay the price

ROMAN LAW

OBLIGATIONS OF A BUYER
To receive delivery

ROMAN LAW

OBLIGATIONS OF A BUYER

To reimburse the seller for keeping

the thing sold

ROMAN LAW

OBLIGATIONS OF A BUYER
To pay the price occasioned by
lesion

New Civil Code

OBLIGATIONS OF A BUYER
To sue the specific performance
plus damages ( Art. 1191)
To sue for rescission of Contract
plus damages ( Art. 1191)

New Civil Code

OBLIGATIONS OF A BUYER
To suspend payment of the
price in some cases ( Article
1590)

2
1

To refuse to accept the goods in

some cases (Art. 1599)

New Civil Code

OBLIGATIONS OF A BUYER

To sue for damages (Art. 1599)

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

CONSENSUAL
CONTRACTS
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.

ROMAN LAW

Termination of Lease
Contract
Agreement of the Parties
With Just Cause

ROMAN LAW

Termination of Lease
2
Contract
Expiration of the period agreed
upon

ROMAN LAW

Termination of Lease
3
Contract
Merger of titles of both parties
of the same person

ROMAN LAW

Termination of Lease
Contract
Destruction of the subject
matter in the same contract

ROMAN LAW

Termination of Lease
Contract
Destruction of the subject
matter in the same contract

CONSENSUAL
CONTRACTS
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.

Requirements of Societas

Contribution
Share of partnership profits and loss
Intention to form partnership
Lawful object

Kinds of Societas

Societas Omnium Bonorium

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

Kinds of Societas

Societas Aliculus Negotionis

A partnership which is organized for
a particular purpose.

Kinds of Societas
Societas Ominum Quae Ex
Quaestu Veniunt
A partnership where only the
property invested in the business
belonged to the firm.

Kinds of Societas
Societas Rei Unius
A partnership in a single thing

Kinds of Societas
Societas Certarum Rerum
A partnership in certain things

ROMAN LAW

Rights and Liabilities of Third

1
Parties
If all partners entered into a contract
with a third party all of them could
sue and be sued on it

ROMAN LAW

Rights and Liabilities of Third

2
Parties
If only a partner entered into a
contract in his own capacity he alone
is liable

ROMAN LAW

Rights and Liabilities of Third

Parties

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 copartners.

New Civil Code

Rights and Liabilities of Third

1
Parties
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.

New Civil Code

Rights and Liabilities of Third

2
Parties
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)

New Civil Code

Rights and Liabilities of Third

Parties

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

New Civil Code

Rights and Liabilities of Third

Parties

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.

New Civil Code

Rights and Liabilities of Third

Parties

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

Roman Law

Dissolution of Partnership
EX
PERSONIS

EX
ACTIONE
EX
VOLUNTATE

EX
REBUS

Roman Law

Dissolution of Partnership
EX
PERSONIS

Death
Capatis Des Demenutio

Forfeiture of Property to the Fiscus

Bankruptcy

Roman Law

Dissolution of Partnership
EX
ACTIONE

Judicial Dissolution

Roman Law

Dissolution of Partnership
EX
REBUS

Accomplishment of the
purpose of partnership
Purpose becomes impossible
Expiration of the term of
partnership
When the thing in question
cease to exist

Roman Law

Dissolution of Partnership
EX
VOLUNTATE

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

New Civil Code

Art 1830

Dissolution of Partnership
Termination of Specified Term
Express Will of the Partner
Expressed will of the partner
except those who have

New Civil Code

Art 1830

Dissolution of Partnership
Expulsion in Good Faith of a member
Withdrawal
Unlawfulness of the business
Loss of the Specific Thing promised

New Civil Code

Art 1830

Dissolution of Partnership
Death of any partner
Insolvency of any partner
Civil Interdiction of any party
Dissolution by virtue of a final

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.

Roman Law

Elements of Mandatum
Lawful
Object
The object of
the contract
must be

Roman Law

Elements of Mandatum
INTEREST
The mandatory must
give interest in the thing
to be done by the

Roman Law

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

Roman Law

Kinds of Mandatum
Tua Et Sua
For the benefit of the principal and
the agent. The principal requests
that the agent should lend the
money to somebody whom he
nominates.

Roman Law

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

Roman Law

Kinds of Mandatum
Suat Et 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.

Roman Law

Kinds of Mandatum
Tua Et Aliena
For the benefit of the agent and a
third person.

Roman Law

Can the agent refuse

Appointment?
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.

Roman Law

Can the agent refuse

Appointment?
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)

New Civil Code

Can the agent refuse

Appointment?
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.

REAL CONTRACTS
Real contracts are perfected by
delivery.
It may be nominate or
innominate.

NOMINATE REAL CONTRACTS

MUTUUM
COMMODATUM
DEPOSITORIUM
PLEDGE

NOMINATE REAL CONTRACTS

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.

NOMINATE REAL CONTRACTS

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.

NOMINATE REAL CONTRACTS

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

NOMINATE REAL CONTRACTS

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.

ROMAN LAW

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.

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.

1. Interest must be expressly

stipulated in writing. Hence, if
there is no written agreement
that interest will be paid, no
interest can be charged.
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
PERMUTATIO
AESTIMATUM

PRECARIUM
DONATIO SUBMODO

COMPROMISE

INNOMINATE CONTRACTS
PERMUTATIO
{BARTER}
A gives typewriter to B on
account of Bs promise to give A
a Betamax.

INNOMINATE CONTRACTS
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.

INNOMINATE CONTRACTS
DONATIO SUBMODO
{CONDITIONAL GIFT}
M gives something to N on the
condition that B will do
something for A.

INNOMINATE CONTRACTS
PRECARIUM
{PERMISSIVE OCCUPANCY}
The tenant if, permitted to
occupy a property can exclude
others from usurping hi
possession except as against the
owner.

INNOMINATE CONTRACTS
COMPROMISE
Amicable settlement of the
controversy.

FORMAL CONTRACTS
STIPULATIO
DOTIS DICTIO
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

FORMAL CONTRACTS
DOTIS DICTIO

This is a contract whereby a

woman or debtor binds himsel
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 preexisting agreement.

ROMAN LAW

NEW CIVIL CODE

COMPILED BY
EPI MA. KASSANDRA DAJAO
FAITH LUBERAS
LLB-LO2
10 July 2015