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contract - correct answer fundamental idea is that the obligations finds it's source in an agreement, in sale eg, the agreement must be on object to be exchanges for a fixed definite price in money note: there are 4 distinct principles of liability ...

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  • August 15, 2024
  • 13
  • 2024/2025
  • Exam (elaborations)
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  • foundations of private law

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  • PRIVATE LAW
  • PRIVATE LAW

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foundations of private law

contract - correct answer fundamental idea is that the obligations finds it's
source in an agreement, in sale eg, the agreement must be on object to be exchanges for a fixed definite
price in money

note: there are 4 distinct principles of liability



limits of contractual obligations - correct answer -privity- a contract in principle
binds only the parties to it: hence in principle third persons can neither derive nor be placed under
obligations by a contract to which they are not party

-capacity to contract- age and mental capacity

-illegal contracts- courts will not intervene in any way, consequences?

-legal but unenforceable agreements- courts will not enforce the agreement but will put right the
consequences of part performance of the agreement of the agreement by applying the law of
unjustified enrichment to re-establish the status quo ante: if one party performs his/her side of a
bargain and the other party fails to perform he/she agreed to perform in exchange

-breach of contract



the 4 main groups of contract - correct answer -real- mutuum, commodatum,
depositum, pignus

-literal

-verbal- eg stipulatio

-consensual- sale, hire, partnership, mandate



the real contracts - correct answer liability arises not on mere agreement but
on the handing over of the thing

they are gratuitous- usually between friends

mutuum. commodatum, depositum, pignus



mutuum- loan for consumption, a gratuitous loan of a fungible (thing that will be used up) such that
both ownership and possession pass to the borrower

, involves a) handing over of fungible thing and b) agreement that equivalent thing will be returned

effects of contract- borrower obliged to return equivalent when demanded, ie separate stipulation of
date

enforcement of contract- condictio.

unilateral contract



commodatum- loan for use, gratuitous loan of non-fungible

neither ownership not legally protected possession passes only mere physical possession (detention)



mutuum - correct answer gratuitous loan for consumption- both ownership
and possession pass to the borrower

a) handing over of fungible thing (thing that will be used up)

b) agreement that equivalent thing will be returned

effects of contract- borrower is obliged to return equivalent when demanded, separate stipulation eg
date

enforcement of contract- condictio

unilateral absolute obligation on the borrower to return an equivalent amount and quality of the
fungible at the appointed time- no fault liability



commodatum - correct answer gratuitous loan for use- only natural possession
passes to the borrower

a) handing over of thing

b) agreement same thing will be returned

borrower obliged to return thing when agreed and obliged to look after the thing in the meantime

imperfectly bilateral contract- borrower is always obliged to return the object at the appointed time

lender always has claim on the contract to enforce borrower to return the object at the agreed time, fair
wear and tear except or failing return of the object, for damages for loss- subject to culpa levis

the lender is obliged to compensate the borrower for any losses sustained ie exceptional costs, such as
carrying essential repairs out on a car while borrowing it

enforcement of contract

-actio commodity directa (obligations on borrowers side arise directly from the contract)

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