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the Doctrine about contract Aristona

The main certificate of perception of contract Labeona is doctrine Aristona presented Ulpianom in the comment to ediktu «De pactis et conventis» (D. 2.14.7.2.):

Sed et si in alium contractum res non transeat, subsit tamen causa, eleganter Aristo Celso respondit esse obligationem.

Ut puta dedi tibi rem ut mihi aliam dares, dedi ut aliquid facias: hoc synallagma esse et hinc nasci civilem obligationem. Et ideo puto recte Iulianum a Mauriciano reprehensum in hoc: dedi tibi Stichum, ut Pamphilum manumittas: manumisisti: evictus est Stichus. Iulianus scribit in

But if the given case does not approach under any contract, but there is causa, how Ariston has gracefully answered TSelsu, the obligation exists. Also it is considered, that if I have given you a thing that you have given me other thing or have given, that you have made something: that thus takes place sinallagma, and from here there is a civil

The obligation. And consequently I consider, that JUlian correctly blamed Mauritsiana on such business: I have given you (slave) to the Verse,

factum actionem a praetore dandam: that you have released on freedom (slave) ille ait civilem incerti actionem, id Pamfila; you have released, and the Verse was est praescriptis verbis sufficere: esse evitsirovan. JUlian writes, that praetor enim contractum, quod Aristo should give actio in factum, and that synallagma dicit, unde haec nascitur (Mavritsian) wrote, that it is enough actio actio. civilis incerti, i.e. actio praescriptis verbis,

Since the contract which Ariston names sinallagmoj is concluded and on the basis of it there is this claim.

The resulted fragment is devoted qualification of transactions which do not approach under certain type of the contract. In a fragment along with Aristonom views of other lawyers - Mavritsiana, Ulpiana and TSelsa are presented. Doctrine Aristona is concentrated thus in following phrases: 1) «Sed et si [790] in alium contractum res non transeat, subsit tamen causa, eleganter Aristo Celso respondit esse obligationem: ut puta dedi tibi rem ut mihi aliam dares, dedi ut aliquid facias: hoc synallagma esse et hinc_nasci civilem obligationem"("But if the given case does not approach under any contract, but there is causa, how Ariston has gracefully answered TSelsu, the obligation exists. Also it is considered, that if I have given you a thing that you have given me other thing or have given, that you have made something: that thus takes place sinallagma, and from here there is a civil obligation»); 2) «... esse enim contractum, quod Aristo synallagma dicit, unde haec nascitur action"("since The contract which Ariston names sinallagmoj is concluded and on the basis of it there is this claim »).

Reconstruction of doctrine Aristona demands interpretation of concepts res, causa, synallagma, obligatio, forming a conceptual outline of its doctrine, and also comparison of its approach to judgement TSelsa and the theory of contract Labeona.

1) Concept res

In words «sed in alium contractum res non transeat, subsit tamen causa...» The first debatable concept is res. According to one interpretation, res means the transaction [791]. Burdeze notices, that res it is the legal act expressing set of interests of the parties, i.e. «id, quod actum est» [792]. The sight is extended, that res a synonym conventio, and the statement «sed in alium contractum res non transeat» belongs Ulpianu, replaced conventio on res to avoid repetition [793]. At such interpretation Ulpian as though continues the system analysis conventiones iuris gentium, presented by it in first two paragraphs (D. 2.14.7. Pr. - 2). Probably, res means the real transaction [794]. So, Santoro believes, that res specifies in the agreement (conventio), demonstrated in granting (datio, factum), directed on definite purpose realisation (causa) from which other party [795] agrees.

Further the researcher notices, that res Aristona korrespondiruet stated Labeonom to idea «convenire re» (D. 2.14.2) with some displacement of accents: at Labeona the agreement consists by means of a thing (res), at Aristona, on the contrary, res comprises idea convenire [796]. With a similar sight K.Pellozo acts, noticing, that the concept res is chosen Aristonom intentionally to show necessity of a real element for integration of new atypical transactions into system ius civile [797]. At last, the sight has been put forward, that res means legal relation [798]. The sense of statement Aristona is reduced to ascertaining of presence of the basis as well in the legal relation which is not in strict sense the contract. At an estimation of interpretation res it is necessary to take into consideration, that in the late classics the legal language for a designation of private-law certificates has already developed. For the transaction terms negotium, conventio, actus were used. Fragments Aristona [799] confirm possession with it the given terminology. The reference to res with all probability does not carry technical character. It is difficult to agree with R.Santoro and K.Pellozo's interpretation for terminological reasons. Already survey analysis of sources does not confirm, that the word res was used for a designation of real contracts. From this follows, that res means simply the set of facts, business, or the legal act [800]. At such interpretation the statement «sed in alium contractum res non transeat, subsit tamen causa... esse obligationem» specifies, that «if the set of facts under any contract does not approach, but takes place causa...voznikaet the obligation». In our opinion, Ariston does not connect the theory with a real configuration of anonymous contracts. He is intended to underline only value of a legal ground (causa) for obligation occurrence.

2) Concept causa

Condition at which the certain set of facts acts as the basis (res) obligation occurrence, according to Aristona, presence causa is. Interpretation of this concept is key for understanding of the concept of the lawyer and consequently to the most debatable.

According to a traditional sight under causa execution of the first of grantings, i.e. datio in transactions of exchange character with structure of grantings «do, ut des» and «do, ut facias» [801] is understood. Such interpretation is supported following the statement about value causa a phrase «ut puta: dedi ut des, dedi ut facias.» [802] («as that: I have given, that you have given in exchange, I have given, that you have made») in which the essence causa Aristona ostensibly reveals. The sense of statement Aristona at such interpretation is reduced to that if in any transaction the first of grantings as I take place in transactions of exchange character on type «is executed has given you something that you have given in exchange», «I have given, that you have made something» there is an obligation. Traditional interpretation causa has received the further interpretations in the literature. Correct a sight about coincidence causa and datio A.Burdeze and A.Mantello, believing, that causa is the purpose of the transaction realised in the first granting [803]. Under K.Pellozo's remark causa acts as the granting of a special-purpose character directed on reception of the passer [804]. J. Melillo [805] and. Biskotti [806] notice, that causa, identified with datio, means the granting directed on reception of the passer, for the sake of restoration of equivalence and property balance.

According to other "konsensualnomu" to interpretation, causa means sdelochnoe the basis which is distinct from the first of grantings [807]. Concept causa

It is used Aristonom in value of function and the transaction purpose for which realisation contract [808] consists.

Gallo [809], identifying causa and datio, notices, that Ariston not simply uses concept causa, but addresses to expression «subsit tamen causa» («but if takes place causa»). In aggregate with examples of exchange transactions with structure do, ut des and do, ut facias, illustrating concept causa, such expression specifies in merge causa with the first of grantings.

To expression interpretation «subsit tamen causa» K.A.Kannata addresses also, but comes to other conclusion. Ariston uses a verb subesse in present time. In a phrase «subsit tamen causa» it means, that for a recognition of the transaction the contract the basis (causa), immanent is necessary for the transaction (subest), and not settled in the first of grantings within the limits of transactions do, ut des and do, ut facias, resulted as examples. It is necessary to agree with T dalla Massara, that Ariston pursued the aim to prove contract protection for atypical transactions with the exchange maintenance and tried to overcome discussion of atypical transactions from a doctrine position about kondiktsii. Such transition assumed revealing of the basis, function of an exchange of grantings [810]. Integration causa with the first granting (datio) reduces its role to the purpose pursued by the party, made the first granting and consisting in reception of the passer [811]. In this case causa one of grantings is the basis for the passer.

It is obvious, that causa it is understood Aristonom not as attribute of legal action of one of the transaction parties, it is not reduced to the justification of counter granting, and expresses type or the general legal ground expressing the property purpose and function of the contract.

For an estimation causa it is necessary to address to other certificates of its use Aristonom [812], the main thing from which is the following (D.

19.4.2.):

Paulus 5 ad Plaut. Paul, 5th book to Plavtu

Aristo ait, quoniam permutatio Ariston says, that as exchange is close vicina esset emptioni, sanum to the purchase, it is necessary to recognise true, that the slave, quoque furtis noxisque solutum which has been transferred on such basis, et non esse fugitivum servum is healthy, free from noksalnoj praestandum, qui ex causa responsibility and responsibility for daretur. Larceny, and also it is not inclined to flight.

In the resulted text the concept causa urged to prove analogy of exchange to purchase and sale with a view of putting on on tradenta a duty traditional for the seller to guarantee quality of a thing. Possibly, the lawyer used causa in the value similar to fragment D. 2.14.7.2. The phrase «qui ex causa daretur» directly differentiates datio and causa. Along with resulted fragment Ariston uses concept causa and in other certificates in value of the consideration (D. 25.2.6.5; D. 39.2.28; D. 40. 7. 5 pr.), or the purposes (D. 19.4.2; D. 36.3.13; D. 39.5.18.2), not coinciding with the first granting under the transaction.

Use Ulpianom of expression «subest causa» within the limits of the comment to ediktu «De pactis et conventis» in a following fragment (D can be additional argument in advantage causa in value of the legal ground which is distinct from granting. 2.14.7. 4.):

Ulpianus 4 ad ed. Ulpian in 4th book of the comment to ediktu

Sed cum nulla subest causa But if there is no basis it is established, that propter conventionem hic constat by means of agreement by parol cannot non posse constitui obligationem: to arise the obligation: as it is simple igitur nuda pactio obligationem the agreement does not generate the obligation, but non parit, sed parit exceptionem. ekstseptsiju.

The phrase «subest causa» in the resulted fragment specifies again property of the certain agreement which cannot be settled in granting in presence of the basis which are not coinciding with datio since expresses idea of immanence. The given text, except other, confirms a key role causa for obligation occurrence. Without causa agreement by parol is not capable to generate the obligation, on express indication Ulpiana. It is possible vozrazait, that within the limits of the comment to ediktu «De pactis et conventis» the concept causa could have different values, and in D.2.14.7.2 causa nevertheless is understood as the first execution. But if it was so to logic of a narration there would correspond instructions the lawyer on polisemichnost the term causa. But such explanation has not followed, therefore it is possible to assume, that Ulpian uses in the resulted fragment concept causa and expression «subest causa» in uniform value of the legal ground separated from the first granting.

The resulted texts (D.2.14.7.4 and D. 19.4.2.) confirm, that Ariston used concept causa in value of the consideration integrating of idea of function and the purposes, and not coinciding with the first granting.

3) Concept obligatio

Presence in the atypical transaction of a legal ground leads to obligation occurrence. In fragment Ariston resorts to concept obligatio twice - in a phrase «sed in alium contractum res non transeat, subsit tamen causa, eleganter Aristo Celso respondit esse obligationem», and then within the limits of discussion Mavritsiana and JUliana about the claim, applicable for the atypical transaction on model do, ut facias, in words «hoc synallagma esse et hinc nasci civilem obligationem».

After statement Aristona, that at presence causa the transaction is the obligation, legal acts («dedi tibi rem ut mihi aliam dares, dedi ut aliquid facias») are resulted as examples. It can mean, as obligatio matters the legal act. But such value will not be adjusted with the use in other place of a fragment «... hoc synallagma esse et hinc nasci civilem obligationem.» («It is sinallagma, and from this there is a civil obligation») since here obligatio already means debt relationship. Raznoboj in the first and second cases of the use of the obligation, and also remedial stylistics of the comment to ediktu «De pactis et conventis» [813] where differences between the contract and the pact are spent in first two paragraphs on character of remedial protection (on the cause of action or ekstseptsii), became the reason of assumptions about interpoljatsionnoj to updating obligatio in the second part of a fragment on actio [814] (Thus the final phrase ostensibly sounded «hoc synallagma esse et hinc nasci civilem actionem» (my italics - And. N)) ). Actually the text does not give the bases for replacement obligatio on actio in the second part [815]. Interpoljatsionnaja the criticism constructed on different value obligatio, mismatches character of a fragment. It is simple to see, that in both cases obligatio acts in value of legal relation [816]. In the first case in a phrase «sed in alium contractum res non transeat, subsit tamen causa... esse obligationem», the concept res already comprises idea of the obligations certificate, thanks to presence in which legal ground and takes place obligatio. In a phrase it is accented prichinnosledstvennaja communication between presence in the transaction (res) a legal ground (causa) and its consequence in the form of debt relationship. From the second phrase «hoc synallagma esse et hinc nasci civilem obligationem» the concept sinallagma follows, that, describing obligation structure, again specifies on obligatio in value of legal relation [817]. Concerning a phrase civilis obligatio in the second case it is necessary to admit, that in it the remedial aspect of the obligation - protection by the special civil claim [818] is accented.

4) Concept synallagma

Use Aristonom of a word synallagma allows to discuss its concept in the ratio with doctrine Labeona since the given concept meets only in certificates of two named lawyers. The concept sinallagma appears in a fragment also twice: 1) «Ut puta dedi tibi rem ut mihi aliam dares, dedi ut aliquid facias: hoc synallagma esse et hinc nasci civilem obligationem» («also it is considered, that if I have given you a thing that you have given me other thing or has given that you have made something: that thus takes place sinallagma, and from here there is a civil obligation»); 2) «esse enim contractum, quod Aristo synallagma dicit, unde haec nascitur actio» («since the contract which Ariston names sinallagmoj is concluded and on the basis of it there is this claim»).

Assumptions were come out, that sinallagma is in representation Aristona by the Greek synonym of contract [819]. Within the limits of R.Santoro's such interpretation has assumed, that sinallagma expresses idea consensus [820]. With similar idea B.Bondi has acted, having assumed, that Ariston uses sinallagmu instructions on agreement [821]. Such interpretation has met fair criticism Vochi and Gallo - and R.Santoro, and Bondi try to see traces modern konsensualnoj contract theories in concept Aristona [822].

In our opinion, Ariston did not identify the contract with sinallagmoj, and used the Greek term for the description of structure of mutual obligations. If to address to phrase close interpretation «esse enim contractum, quod Aristo synallagma dicit, unde haec nascitur actio» it is not difficult to notice, that Ariston itself does not use sinallagmu as a contract synonym. Such identification to it attributes Mavritsian, or, probably, Ulpian [823]. In our opinion Ariston considers sinallagmu along with causa as one of attributes of the contract, not putting it on the central place and not identifying with the contract. Thus, interpretation according to which sinallagma and the contract are not identical is represented to more true. Sinallagma expresses structure of the obligations arising from the contract.

In sinallagme one researchers see transformation, others repetition of concept Labeona. According to F. G hallo, sinallagma in understanding Aristona means not reciprocity of obligations on model ultro citroque obligatio Labeona, and the reciprocity of grantings [824] and in this sense is closer Aristotle's to doctrine about a mutual exchange [825]. According to E.Shandrello, idea of restoration of the property balance, expressed in sinallagme

Aristona, proves to be true logic of a narration according to which the reference to sinallagme occurs after illumination of examples on model «dedi ut des» and «dedi ut facias». From such examples ostensibly follows, that the first granting should be made. Sinallagma it is entered into game only after instructions on fulfilment of the first granting (datio) when there is a situation property disbalansa, and restoration of property balance [826] is necessary. A similar sight adheres to L. G arofalo in which opinion Ariston has acted with criticism sinallagmy Labeona as expressions of reciprocity of the obligation and transformed it to reciprocity of grantings [827]. In the same spirit A.Burdeze [828] has expressed. According to A.Biskardi [829] and J. Grosso [830] sinallagma Aristona represents development of concept Labeona by means of integration of atypical transactions in which the reciprocity of grantings takes place.

Interpretation according to which sinallagma Aristona specifies in reciprocity of obligations uses a smaller recognition and repeats the concept sinallagmy Labeona. It adhere to K.A.Kannata [831], T dalla Massara [832] and M.Talamanka [833]. As key argument in favour of such interpretation some automatism of use of the Greek term can serve. The authors mentioned in a fragment - Ulpian, Ariston, Mavritsian - use sinallagmu without an explanation of its value [834]. It can say that sinallagma is known for it, probably, thanking Labeonu.

Along with discussions about perception Aristonom of doctrine Labeona in its primary or processed kind ideas about independence of two concepts have been stated. For the first time M.Sardzhenti has expressed it [835]. This approach has been partly apprehended by T.Dalla Massara who has admitted, that Ariston along with concept Labeona addressed also to the Greek texts for working out of own concept sinallagmy [836]. From last adherents of the given approach of K.Pellozo has assumed, that Ariston, connecting sinallagmu with examples of transactions do, ut des and do, ut facias has addressed to Aristotle's original concept, having consiliated it with the Roman concept of the obligation. Sinallagma Aristona - the independent source of the obligation which are distinct from the contract and sinallagmy Labeona [837]. The same way P.Gryoshler understands under sinallagmoj Aristona the contract with already executed first granting [838]. Use for a designation of such contracts of concept sinallagma correlates with idea of the first granting for reception of the passer in the Greek right [839]. Estimating concepts about influence of the Greek right, it is necessary to take into consideration, that Ariston, living in 2 centuries after Labeona, is the representative of the high classical jurisprudence which has reached of a level of development whom the Roman jurisprudence cannot reach any more never. The logician of development of any law and order is assumed, that by the reception of legal designs from external legal systems, or so-called legal transplantation, is admissible, when the system-donor is more developed, and the legal system-aktsipient is not capable to solve the problems put before it. Prospective reception Aristonom of the theory sinallagmy from idea of teleologic property granting of the Greek right means the reference to less developed law and order that does not answer the purposes of the reception and legal transplantation. To it it is possible to add, that in the Roman Law already there was a concept of property granting in exchange for counter, authorised kondiktsionnym the claim (condictio ob causam). About the Greek origin of concept Aristona, the put forward K.Pellozo for a substantiation of the reference to Aristotle's concept, also hardly it is possible to name argument successful. The Nerimsky origin of the Roman lawyer could not affect its professional views as it received formation in Rome. Thus, Ariston obviously discusses in a fragment concept sinallagma in understanding Labeonom, perceiving and reinterpreting it. Comparison of approaches Aristona and Labeona demands for a short while again to recollect the concept. In understanding Labeona reciprocity of obligations and vstrechnost grantings were indissoluble. It did not sever genetic and functional aspects sinallagmy. Besides, the lawyer considered potentially sinallagmaticheskimi as well real and gratuitous (as, for example, the commission) dogovory. Reference Aristona to sinallagme Labeona has been caused being in focus of both lawyers by necessity to resolve a problem of integration into the Roman law and order of atypical contracts.

Close interpretation of the text does not give the bases to approve, that Ariston has changed reciprocity of obligations Labeona to reciprocity of grantings in real contracts. Labeon, as is known, understood reciprocity very widely (to recollect terms of partnership where the exchange of grantings is not present enough, but there is a conditional concept of an exchange of the future benefits from participation in association, or the contract of factorage where again the reciprocity is not so obvious). Ariston structured concept Labeona, having subordinated sinallagmu to a transaction legal ground. Concepts sinallagmy and causa are on the different conceptual bases: the idea causa expresses idea of function while sinallagma concerns structure of the set of facts, expressing communication between grantings and obligations [840]. Besides causa and synallagma on the volume are not equal each other. Probably, that exchange transactions which Ariston mentions to a phrase «dedi tibi rem ut mihi aliam dares, dedi, ut facias», it is accented the granting moment (in it specifies, that the verb dare is put in last time, i.e. dedi), thus that causa could realizovovyvatsja and in mutual obligations. The concept causa for Aristona is conceptual the contract elements, expressing idea of a legal ground and contract function, and subordinirujushchim structure arising of its obligations and grantings.

3.2.

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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

More on topic the Doctrine about contract Aristona:

  1. § 3. A problematics of atypical contracts and the doctrine about contract Aristona
  2. § 4. The doctrine about contract Labeona in the light of problems of contract typicalness. The claim agere praescriptis verbis
  3. a doctrine parity about the contract and the claim agere praescriptis verbis
  4. Chapter 2. The doctrine about contract Labeona.
  5. § 1. Evolution of concept of the employment contract under the influence of the doctrine
  6. comparison of sights Aristona and TSelsa
  7. Chapter 2. The account of the doctrine of the law of master and servant at creation and development of institute of the employment contract
  8. Novitsky 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 2014
  9. Balitsky Cyril Stepanovich Vlijanie. of the doctrine of the law of master and servant on formation of institute of the employment contract. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg -, 2018 2018
  10. 1.1. Doctrine development about essence of the legal person in the domestic and foreign civil doctrine.
  11. § 3. Requirement default about the state registration of the contract as the basis for Contract recognitions not concluded
  12. the Chapter I. The Civil-law doctrine and the legislation on retail purchase and sale. Kinds of the contract of retail purchase and sale,
  13. § 2. Concept and contract elements (the foreign trade contract) international purchase and sale of the goods
  14. § 1. The contract on development of the built up territory as the civil-law contract
  15. § 2. A subject of the contract building podrjada as its qualifying sign and features of a legal element of a subject of the contract
  16. §2. Execution of the international contract. Structure of contractual communications and kinds of the documents which are making out execution of the international contract of purchase and sale
  17. § 3. Execution and a liability of infringement of the contract of insurance. The termination and invalidity of the contract of insurance
  18. the Chapter II. Elements of the contract of retail purchase and sale. Especial] »makings contract of retail purchase and sale.
  19. §3. Features of indemnity against liability under the contract. Validity of the licensing of indemnity against liability under the contract.