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the certificate Sixth Pedija

The fragment which connected with systematisation Ulpiana and has expressed value of the agreement in the contract, the well-known text Sixth Pedija [928] (D is. 2. 14. 1. 3) [929]:

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

Ad eo autem conventionis nomen the Word conventio (agreement) is generale est, ut eleganter dicat Pedius so the general, that as has successfully told nullum esse contractum, nullam Pedy, the contract is insignificant, is insignificant obligationem, quae non habeat in se the obligation, in which not conventionem, sive re sive verbis fiat: contained agreements, without dependence nam et stipulatio, quae verbis fit, nisi from, whether it is made by means of habeat consensum, nulla est. A thing or words, since and stipuljatsija, which

It is made by means of words, it is insignificant, without the astipulation.

The fragment is a comment part to ediktu «De pactis et conventis» Ulpiana, divided by composers Digest on three large passages, 2nd books Digest placed in different titles (D. 2.14.1 + D.2.14.5 + D. 2.14.7). The lawyer considers the given text as an introduction rule (D. 2.14.1) after that passes to the analysis of kinds of agreements (D. 2.14.5) and then considers a problematics of anonymous contracts, addressing to the doctrine

Aristona (D. 2.14.7 pr.-2) [930]. Probably, that Sixths Pedy has presented generalisation about an agreement role also in the comment to ediktu «De pactis et conventis», as has pushed Ulpiana to address to it [931].

Ulpian underlines value of the agreement (conventio) as most the general term (nomen generale) the validity of the contract and results the statement Sixth Pedija, successfully noticed, that if at contracting it is not reached agreements the contract and the obligation do not exist (are insignificant). Cвое the statement of Sixths Pedy opens on an example real and verbal contracts («sive re, sive verbis»), noticing, that if the parties have not reached the agreement at their conclusion, it leads to negligibility of the obligation. Further the lawyer addresses to stipuljatsii. Putting the validity of the obligation from stipuljatsii in dependence on agreement achievement at its conclusion, Sixths Pedy solves a collision which is going back to the preclassical period of the Roman Law about a role of the agreement at the conclusion stipuljatsii [932]. Stipuljatsija through a recognition conventio a condition of the validity of the obligation arising from it ceases to be naked promise. The conclusion stipuljatsii by means of ritual pronouncing of solemn words remains a tribute of legal tradition.

Long time the fragment was considered containing interpolation. It is literally under the text follows, that Sixths Pedy specifies in necessity of the agreement not only for the contract, but also for the obligation («nullum esse contractum, nullam obligationem»). Agreement presence in the obligation in value of legal relation seems nelepitsej, since the agreement - an element of the set of facts of the agreement. In this connection the phrase «nullam obligationem», according to a number of scientists, is late addition [933]. Concept interpretation obligatio in more archaic value as the obligations certificate, allowing to remove interpoljatsionnoe pressure [934], leads to redundancy of statement Pedija [935]. At last, absence of instructions on literal dogovory in expression «sive re sive verbis fiat» also speaks about interpolation since composers Digest everywhere deleted the reference on literal dogovory, disappeared of practice [936].

From last works in research of J. Romano had been put forward idea about distortion of a final phrase «nam et stipulatio quae verbis fiat, nisi habeat consensum, nulla est» [937]. The argument is constructed on terminological heterogeneity of a fragment. In its initial part of Sixths Pedy speaks about conventio as about the main concept, of a final part - about consensus. As these two concepts had ostensibly different values, their use as synonyms in one text testifies to distortion [938]. It is possible to put forward objection, having noted mess peculiar to classical Roman lawyers in use of concepts conventio and consensus to which the author and which, probably refers, it is reflected in a fragment. In our opinion, the text, probably, is damaged only regarding absence of instructions on literal dogovory in a phrase «sive re sive verbis fiat». In the rest it is authentic [939]. It is difficult to agree with interpretation about phrase distortion «nullam obligationem». Statement Pedija about negligibility of the obligation at absence in it of the agreement actually served conceptual problems. A number of researchers in expression «nullum esse contractum, nullam obligationem» sees gendiadis, i.e. definition of one concept by two synonyms which differently could be expressed a phrase «obligatio contracta» [940]. Such interpretation support P.Vochi [941], A.Burdeze [942], T dalla Massara [943], M.Talamanka [944], K.Ferrini [945], A.Skjavone [946], etc. With criticism of such interpretation has acted as K.A.Kannata [947] in which opinion gendiadis it is not formed by means of double negation (nullum esse contractum, nullam obligationem). Along with stylistic explanations, the sight is extended, that expression «nullum esse contractum, nullam obligationem» comprises the latent estimation and criticism Pediem of actual doctrines for it about the contract. According to S.E. Vunnera [948], instructions in the negative form for an agreement role in the obligation («... nullam obligationem...» ) Proves, that Sixth Pediju two-private division of sources of the obligation on delictual and contract because the phrase about negligibility of the obligation in the absence of the agreement from a tort liability position looks deprived of sense is not known. Further this thought develops And. D'Ors [949], seeing in instructions for an agreement role in the contract («nullam contractum») sending to consensual contracts, and in the obligation («nullam obligationem») - to the transactions covering in systematisation of Guy real, verbal and literal dogovory. Interpretation of J Is worthy. La the Feast [950] and R.Knjutelja [951], seen in use Sex volume Pediem of concepts obligatio and contractus traces of judgement and criticism of the doctrine about contract Labeona. In a phrase «nullum contractum» the reference to contract Labeona, in ascertaining of value of the agreement in the obligation («nullam obligationem») - the reference to the real and verbal transactions covered in formulation Labeona by concept actum disappears. With similar interpretation K.A.Kannata has acted, not having seen, however, in words Pedija the latent criticism Labeona. Speaking about an agreement role in the contract, Pedy means typical consensual contracts, speaking about the obligation, he refers to formal transactions which initially did not comprise the agreement. Real, verbal and literal transactions concern their number [952].

Statement Pedija in a context of formation of institute of the contract in jurisprudence of the classical period is differently estimated. Since E.Betti, was extended a sight, that words Pedija only the remark that there are no contracts to which the agreement is not presented. Such estimation to a fragment give M.Talamanka [953] and M.Sardzhenti [954]. At such interpretation even if in verbal and real transactions (obligationes verbis et litteris) the obligation formally arises irrespective of the agreement of the parties, it does not exclude, that obligatio verbis or litteris contracta in sotsialnoekonomicheskom the plan is based on a recognition of a role of the agreement. In this social and economic prospect ostensibly also it is necessary to estimate an agreement role in stipulatio about what Pedy speaks in a final part of a fragment [955].

Really, at close interpretation in statement Pedija the imperative modality is not traced, but it does not reduce it before simple ascertaining of the fact and social and economic value of the agreement. In the prologue of fragment Ulpian directly specifies in a role conventio as to the general category (conventionis nomen generale est) [956] and results statement Pedija which, in our opinion, reminds on structure the rule of law with instructions on a hypothesis and the sanction (if the agreement the contract and the obligation are insignificant is not presented). The example resulted in a final part insignificant stipuljatsii, not containing the agreement («nam et stipulatio quae verbis fit, nisi habeat consensum, nulla est»), is acknowledgement of the general rule [957]. Hardly the lawyer tried to show a social and economic role of the agreement in the comment to ediktu, i.e. product of problem legal character. As to discrepancy of the agreement in understanding Sixth Pedija with that value which gives to it Ulpian, for example, in fragment D. 2.14.7.pr., it is necessary to search for the reasons of it in polisemichnosti the term conventio. The concept "agreement" was used by classical Roman lawyers, on the one hand, in value nadkategorii, with another - in value of the intrinsic element inherent in any legal relation and expressing idea of the coordination of wills.

In our opinion, in the presented text of Sixths Pedy has erected conventio to level of a conceptual basis of all lawful legal acts and has created the general maksimu. Elegance of its statement which mentions Ulpian («ut eleganter dicat pedius»), in that and consists, that it could express in a short phrase a principle dominating in the modern doctrine konsensualizma, having overcome formalistsky the approach ius civile even in the relation stipuljatsii. Such estimation of statement Pedija join, for example, S.Rikkobono [958], P.Cherami [959], R.Santoro [960], A.Skjavone [961], K.Dzhaki [962] etc.

Dogmatic character of the rule formulated Pediem, proves to be true at its comparison with the doctrine about contract Labeona. Traditionally approaches to understanding of the contract Sixth Pedija and Labeona are estimated as alternative theories of the contract [963]. If for Labeona the essence of the contract consisted in reciprocity of obligations arising from it for Pedija its main characteristic has been reflected in the agreement which mediates occurrence of the obligation concerning each of the parties of the obligation or only one. For Pedija ostensibly structural characteristics of debt relationship arising from the contract have no value since both in real, and in verbal contracts the agreement of the parties («quae non habeat in se conventionem is necessary, sive re sive verbis fiat: nam et stipulatio, quae verbis fit, nisi habeat consensum, nulla est ») which in opposition to the reciprocity of obligations named also objective dvustoronnostju, it is possible to designate as subjective dvustoronnost [964]. In L.Garofalo's this occasion has truly noticed, that the modern understanding of the contract with its accent on value of the agreement ascends more likely to Sixth Pediju, instead of to Labeonu [965].

The excellent understanding of essence of the contract Sex volume Pediem does not exclude influence on it of doctrine Labeona [966]. Similarity of concepts Sixth Pedija and Labeona speaks the general problem: and Sixths Pedy, and Labeon tried to find in contracts some conceptual basis, capable to consolidate different figures of transactions under a uniform denominator of contract [967]. While Labeon identified reciprocity of obligations, having developed the doctrine about «ultro citroque obligatio», Sixths Pedy it is concentrated to the making contract moment. Here it is necessary to notice, that the reciprocity of obligations understood Labeonom as a sign of the contract, does not exclude value of the agreement in the course of its conclusion. The merit Sixth Pedija consisted that it could overcome

Division of contracts under the form of their conclusion, going back to Fifth Mutsiju (D. 46.3.80) and to Sabine, having displaced value conventio from the form of an establishment of the obligation to essence of the contract. The shown conceptual parallels with Labeonom [968] and possible conformity between ascertaining of value of the agreement in the obligation and the contract with division on actum and contractum in fragment D. 50.16.19, allow to assume, that Sixths Pedy has formulated a principle konsensualizma, taking into consideration doctrine Labeona. Probably, quoting Labeona, Pedy simultaneously changes its concept [969]. According to L.Garofalo [970], in expression «nullum contractum, nullam obligationam, quae sive re, sive verbis fiat» the phrase «quae sive re, sive verbis fiat» which grammatical concerns both the contract, and to the obligation, repeats definition of certificate Labeonom in fragment D. 50.16.19 [971].

Pedy, underlining nerelevantnost a way of the conclusion as concerning the contract, and the certificate, shows value of the agreement as conditions of its validity. Sixths Pedy, washing away borders between the certificate in understanding

Labeona and the contract, tries to change conceptual differences the general denominator - the agreement as a condition of their validity [972].

Despite transformation Pediem of division into the certificate and contract Labeona both lawyers pursued the uniform aim - to give protection and a legal recognition to new kinds of transactions [973]. It certainly pull together their concepts.

Conclusions

The carried out analysis allows to reconstruct contract formation during the period after Labeona. Representatives prokulianskoj schools have apprehended the doctrine about Labeona, following the scheme ultra citroque obligatio at qualification of the contract (D. 12.4.4; D. 19.5.12). Sabiniantsy tried to expand

Existing legal types.

Divergences between schools have proved in dispute round qualification of the barter. While prokuliantsy distinguished exchange and purchase and sale, differentiating the goods and the price, on the one hand, and estimating exchange as konsensualnyj sinallagmatichesky the contract, with another, following, thus, Labeonu, sabiniantsy saw in exchange a purchase and sale version.

To doctrine Labeona addresses Ariston. He notices, that at presence in any transaction of a legal ground (causa) takes place sinallagma and there is an obligation. Under causa he understands a legal ground expressing the purpose and function of the transaction, and not coinciding with the first granting. Causa as the contract basis reveals in structure of the mutual obligations named sinallagmoj. In the term sinallagma Ariston refers to doctrine Labeona. While Labeon underlines reciprocity of obligations, Ariston considers sinallagmu as one of displays causa in the contract. Qualification of the anonymous transaction as the contract is a condition primeninija contractual (actio civilis incerti) the claim. According to view Mavritsiana in the relation aipichnyh exchange transactions the claim actio civilis incerti was applied. On the functions and strukuture repeated developed Labeonom and fixed in edikte JUliana the claim actio praescriptis verbis.

The problematics of qualification of new transactions (nova negotia) has proved concerning the contract of factorage. Its typification occurs through fastening in edikte JUlianom actio praescriptis verbis aestimatoria, the claim simulated with agere praescriptis verbis Labeona. Codification has led to that the claim actio praescriptis verbis for the contract of factorage starts to be applied concerning other atypical transactions in quality actio utilis. Itself JUlian applied actio praescriptis verbis to contracts with mutual character of obligations (D. 19.5.13.1), probably, partly following conceptual line Labeona.

In the late classics the system of private-law agreements by the right of the people (conventiones iuris gentium) is made out. About its statement we learn from the comment to ediktu «De pactis et conventis» (D. 2) Ulpiana, extensively presented in Digestah. The agreement (conventio) starts to be understood as nadkategorija and shares on contracts and pacts. Under conventiones iuris gentium Ulpian means the agreements recognised as in the plan ius gentium, and ius civile, in which the idea of the agreement (consensus) had the central value. The contract within the limits of such system represents the typified named agreement provided with the independent claim in edikte city pretora (nomen contractus). Unlike it the claim does not generate the pact, and generates ekstseptsiju. In systematisation Ulpiana finds fastening hierarchy between the contract and the pact which judgement goes back to the preclassical period.

About an agreement role in the contract does generalisation of Sixths Pedy (D. 2.14.7.3). Marking value of the agreement as well in stipuljatsii, he solves a collision which is going back to the preclassical right, recognising as its condition of the validity as well formal verbal transactions. Fragment Pedija, probably, is a part of discussion with Labeonom. In the statement, that the contract in which there is no agreement, is insignificant, he refers to contract Labeona, in instructions for an agreement role in obligation Pedy addresses to other legal transactions covered in doctrine Labeona by concept the certificate (actum). At the same time Labeon identifies in the contract the objective moment - reciprocity of the obligation, Sixths Pedy - subjective dvustoronnost, i.e. idea of the agreement.

The culmination of development of the contract within the limits of a direction set in sabinianskoj to school, is systematisation (summa divisio) Guy of obligation sources on contracts and torts (Gai Inst. III, 88). Systematisation G aja has lacks. Guy starts to speak about contracts, but passes to contract obligations. Besides, division of sources of the obligation on arising of the contract and the tort does not settle all sources of the obligation, leaving without consideration not contract lawful sources of the obligation. Division of contracts on a way of an establishment on their basis of the obligation (Gai Inst. III, 89) also it is vicious. Putting consensual contracts in one number with real, literal and verbal, the lawyer ignores agreement presence (consensus) in all of them four kinds. Crossing of systematisation of Guy with doctrine Labeona is traced by consideration of consensual contracts. Guy underlines them sinallagmaticheskuju structure in what the general is expressed with Labeonom understanding of idea of reciprocity of the obligation.

Discussion of concept Labeona in works of following generations of lawyers shows, that it has not been betrayed to oblivion. The Roman lawyers addressed to it in search of a conceptual basis of institute of the contract and used developed Labeonom ideas of reciprocity of the obligation for the decision of problems of contractual practice.

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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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