Innominate contracts in roman law and their impact on modern contractual freedom

The subject of this study is the innominate contracts in Roman law and the impact of their legal regulation on the development of modern contractual freedom. The Roman contractual system, dominated by the principle of typicity and formalism, stands in stark contrast to the contemporary principle of contractual freedom. This study revolves around key questions such as how and on what grounds the principle of typicity was abandoned; when and through which stages the contractual system evolved into a general theory of contract; and what role Roman law and Roman legal sources played in this development. Initially a closed agrarian society, the Roman state gradually expanded across diverse geographical regions and became an active participant in international trade. The needs generated by this socio-economic transformation necessitated a relaxation of the dominant formalistic approach in Roman contract law. In this process of gradual process of change, innominate contracts represented the contractual forms that extended the scope of the Roman system of contracts to its broadest limits. Under such contracts, it was recognized that, without any limitation as to subject matter, a mutually binding agreement (synallagma) could give rise to an enforceable obligation once one party had performed their obligation (causa). However, the concept of adherence to type and form was never fully abandoned during any period of Roman law. Consequently, the concept of contractual freedom never truly constituted an integral component of Roman law. Nevertheless, the concepts of causa and synallagma, which were discussed within the theory of innominate contracts, played a critical role in shaping the foundations of contractual freedom from the Middle Ages onward. The moral and religious justifications of canon law, when combined with the necessities of commerce and the equity-based, rational explanations of natural law, were synthesised with Roman legal thinking. Consequently, the stipulation that a party must have previously fulfilled their obligation to establish enforceability was rescinded. Conversely, the focus was directed towards the free and rational will of the parties involved. This synthesis ultimately led to the emergence of contractual freedom. The first chapter of this study, which is divided into two main sections, deals with innominate contracts in Roman law. It first outlines the general features of Roman contracts, the role of the praetors, pactums, and innominate contracts in the evolution of the formalistic approach; then addresses the relationship between rights and actions in Roman procedural law, with particular reference to the formula procedure, which bears relevance to the subject under discussion. In the following examination, the development of innominate contracts from the Classical Period to the age of Justinian is traced, along with the actions granted to them and certain specific examples of such innominate contracts. The second chapter traces the legacy of Roman law in the emergence of the principle of contractual freedom from the Middle Ages to the 17th century. In this chapter, the approach of commercial courts, the views of theological jurists, and the natural law tradition are examined insofar as they can be linked to Roman legal thought. Keywords: Innominate Contracts, Contractus Innominati, Causa, Synallagma, Contractual Freedom