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Consensu〔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").〕 or obligatio consensu〔 or obligatio consensu contracta〔Berger, Adolf. "Consensus" in ''Encyclopedic Dictionary of Roman Law''. American Philosophical Society. Independence Square, Philadelphia. Reprinted 1991. ISBN 0871694352. Part 2 of volume 43 of Transactions of the American Philosophical Society, New Series (1953) (p 408 )〕 or obligations ex consensu〔George Bowyer. Commentaries on the Modern Civil Law. V & R Stevens and G S Norton. London. 1848. Chapter 26. (p 201 ).〕 or contractus ex consensu〔Paul Van Warmelo. (An Introduction to the Principles of Roman Civil Law ). Juta & Co Ltd. 1976. Chapter 12. p 169.〕 or contracts consensu〔Birks, Peter (ed. Eric Descheemaeker). The Roman Law of Obligations. Oxford University Press. 2014. ISBN 9780198719274. Chapter 5. (p 65 ).〕 or consensual contracts〔 or obligations by consent〔 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 necessity 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 upon the ius gentium for their validity. Such contracts were enforced by praetorian actions, bonae fidei, and not by actions stricti juris, as were the contracts which depended on the old civil law 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.〔Campbell, Gordon. A Compendium of Roman Law. Second Edition. Stevens and Haynes. Bell Yard, Temple Bar, London. 1892. (p 130 ).〕 Justinian's Institutes classify the following contracts as consensu: emptio venditio, locatio conductio, societas and mandatum.〔Campbell, Gordon. A Compendium of Roman Law. Second Edition. Stevens and Haynes. Bell Yard, Temple Bar, London. 1892. (p 117 ).〕 ==Emptio venditio== Emptio venditio is a contract of sale. This contract derives its force from the consent of the parties. If, however, they agree to reduce the terms of the contract to writing, then the contract is not complete till it is fully committed to writing. If an earnest had been given, this was forfeited to the vendor if the vendee refused to carry out the contract, and double the value of the earnest was forfeited by the vendor if he did not carry it out. The earnest was considered only as evidence of the contract. There must be a price fixed and certain for every sale, and this price must consist of a some of money. Observations on the above: (1) A sale of a thing at a price to be fixed by a third person is valid if the person does fix a price. (2) The price must be in money otherwise the contract is one of permutatio. This was the view held by the Proculians, the Sabinians considering it to be venditio. The vendor in a contract of sale had to guarantee the vendee free, undisturbed and lawful possession of the thing sold, and to secure him against latent faults. The vendee was bound to put the vendor in legal possession of the purchase money. The contract of sale is completed by the consent of the parties; after this, the thing sold is at the risk of the vendee, who also obtained the advantage of any increase to the object. The actual transfer of the dominium in the thing, that is, the conveyance, as distinguished from the contract, was completed by the delivery of the legal possession of the thing to the vendee. A sale might be made absolutely or subject to a condition. Accessory contracts modifying the principal one were termed "pacts". If the vendor disposed of a thing that was not in commercio, such as a temple or a religious place, he was liable to the vendee for any loss that the latter might have incurred by the error. A stipulator in a similar case would have had no remedy. If the price was less than half the value of the thing sold, the seller might rescind the contract unless the buyer agreed to make up the deficiency. This was termed "laesio ultra dimidium". If the object sold was totally unfit for the purpose intended, the buyer might bring an action for recission - the actio redhibitoria. If the object possessed some defect which diminished its value, the buyer could bring the actio quanti minoris within one year; by this he obtained a corresponding reduction in price.〔Campbell, Gordon. A Compendium of Roman Law. Second Edition. Stevens and Haynes. Bell Yard, Temple Bar, London. 1892. pp (130 ) - 132.〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Obligatio consensu」の詳細全文を読む スポンサード リンク
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