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Obligatio consensu

Consensu[1] or obligatio consensu[2] or obligatio consensu contracta[3] or obligations ex consensu[4] or contractus ex consensu[5] or contracts consensu[6] or consensual contracts[2] or obligations by consent[4] are, in Roman law, those contracts which do not require formalities.

These contracts were formed by the mere consent of the parties, there being no requirement for any writing or formalities, nor even for the presence of the parties. Such contracts were bilateral, that is to say, they bound both parties to them. Such contracts depended on the ius gentium for their validity and were enforced by praetorian actions, bonae fidei, and not by actions stricti juris, as were the contracts which depended on the classical ius civile of Rome. The term consensual does not mean that the consent of the parties is more emphatically given than in other forms of agreement, but it indicates that the obligation is annexed at once to the consensus, in the contracts of this type.[2]

Justinian's Institutes classify the following contracts as ex consensu: emptio venditio, locatio conductio, societas and mandatum.[7]

  1. ^ Amos, Sheldon. The History and Principles of the Civil Law of Rome. Kegan Paul, Trench & Co. Paternoster Square, London. 1883. p 467 ("Consensu, law relating to contracts so called").
  2. ^ a b c Gordon Campbell, A Compendium of Roman Law, 2nd edn. (Bell Yard, Temple Bar, London: Stevens and Haynes, 1892), p 130.
  3. ^ Adolf Berger, “Consensus”, in Encyclopedic Dictionary of Roman Law (Philadelphia: American Philosophical Society, 1991 [reprint]). ISBN 0871694352. Part 2 of volume 43 of Transactions of the American Philosophical Society, New Series (1953) p 408
  4. ^ a b George Bowyer, Commentaries on the Modern Civil Law (London: V & R Stevens and G S Norton, 1848), chapter 26, p 201.
  5. ^ Paul Van Warmelo, An Introduction to the Principles of Roman Civil Law (Juta, 1976), chapter 12, p 169.
  6. ^ Peter Birks, chap. 5 of The Roman Law of Obligations, ed. Eric Descheemaeker (Oxford: Oxford University Press, 2014), p 65. ISBN 9780198719274.
  7. ^ Gordon Campbell, A Compendium of Roman Law, 2nd edn. (Bell Yard, Temple Bar, London: Stevens and Haynes, 1892), p 117.
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