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6.1. System of agreements Ulpiana

During the classical period there is a statement of idea of the agreement as conceptual basis of the contract. For the given period hierarchy fastening between concepts pactum [915], conventio, contractus about which we learn from 4th book of the comment to ediktu «De pactis et conventis [916]» Ulpiana, placed in 14 m with the same name a title («De pactis et conventi») 2й books Digest (D is characteristic.

2. 14. 7. rg. - 1):

Ulpianus libro quarto ad edictum: Ulpian, 4th book to ediktu:

Pr. Iuris gentium conventiones Pr. The agreements based on the right quaedam actiones pariunt, quaedam the people, sometimes generate claims, exceptiones. Sometimes - ekstseptsiju.

1.Quae pariunt actiones, in suo 1. What generate claims, any more nomine non stant, sed transeunt in are designated by the general name, but proprium nomen contractus: ut have actually the contract name, emptio venditio, locatio conductio, for example: purchase and sale, employment,

societas, commodatum, depositum association, the loan, storage and other et ceteri similes contractus. Similar contracts.

The presented fragments precede analysed above concept Aristona, forming its context (D. 2.14.7.2). Ulpian represents system of private-law certificates in which the agreement, on the one hand, acts as the general category covering different kinds of private-law certificates in area ius gentium, and comes under to division into kinds, with another an element, immanent to any contract [917]. In principium the lawyer divides agreements by the right of the people (conventiones iuris gentium) [918] - one of three kinds of the agreements mentioned Ulpianom above in fragment D. 2.14.5 - on generating claims [919] and ekstseptsiju [920]. The agreements provided with the claim, Ulpian names contracts.

For understanding of the systematisation built Ulpianom, it is necessary to address to the expression analysis conventiones iuris gentium [921]. Interpretation of a final phrase depends On its volume in the following § 1 where Ulpian gives the list of the contracts provided with independent claims. Interpretation according to which the concept «conventiones iuris gentium» covers in general any agreements, assumes, that expression «ceteri similes contractus» specifies, including, in verbal transactions, and Ulpian, speaking about the contract, understands it in the widest sense of a word as the legal act provided with the claim. At narrower interpretation conventiones iuris gentium the phrase ceteri similes contractus specifies exclusively in agreements (conventiones), which appear during the preclassical period as agreements by the right of the people (ius gentium) [922]. In the latter case Ulpian limits concept the contract exclusively konsensualnymi and the real transactions provided with claims in which the agreement moment is accented.

In our opinion Ulpian uses concept ius gentium together with conventio out of historical measurement since conventiones iuris gentium in the following § 1 it includes association in number as the contract which has arisen in the Roman community and in strict sense being transaction iuris civilis. For Ulpiana ius gentium is faster a part of the complex Roman law and order in which ius civile, ius gentium and ius honorarium act as the interconnected phenomena forming private law (ius commune privatorum). Thus the lawyer considers conventiones iuris gentium as the concept specifying in obligations agreements, in which the agreement element (conventio, or consensus) plays a special role. It in turn means, that the contract presented Ulpianom as a version conventiones iuris gentium in the following § 1, is understood as the technical term specifying on named konsensualnye and real obligations agreements, provided with independent claims.

Passing to the analysis of the agreements provided with independent claims, in § 1 Ulpian notices, that they any more are not called as agreements, but receive the name of contracts («sed transeunt [923] in proprium nomen contractus»). From concept nomen contractus there was a name of the named contracts in modern legal the dogmatic person. The concept nomen contractus can specify in concrete type of the contract without a binding to concrete headings edikta [924]. Interpretation according to which nomen contractus comprises material and remedial measurements [925] is represented to More true, and specifies in the contract provided with the claim in edikte [926].

Ulpian purchase and sale, employment, association, the loan, storage results examples of the named contracts, in which number. Approximate character of the list proves to be true a finishing phrase ceteri similes contractus (some others dogovory) [927] which as follows from its comparative interpretation with concept conventiones iuris gentium in principium, hints at inclusion possibility in number of contracts of others konsensualnyh and real contracts.

Presented systematisation Ulpiana has key value for understanding of bases of the contract system which have developed during the classical period. It shows some kind of agreement fastening as nadkategorii, the patrimonial concept as which kinds the contract and the pact act, thus, that the idea of the agreement is present at each of its kinds.

6.2.

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A source: Novitskaya Anna Andreevna. DOCTRINE FORMATION About the CONTRACT In the ROMAN JURISPRUDENCE. The dissertation on competition of a scientific degree of the master of laws. Moscow. 2014

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