Obligatio consensu
type of contract in Roman law
Consensu or obligatio consensu or obligatio consensu contracta or obligations ex consensu or contractus ex consensu or contracts consensu 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 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.
Justinian's Institutes classify the following contracts as ex consensu: emptio venditio, locatio conductio, societas and mandatum.
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 until it is fully committed to writing. If earnest money (arrha) had been given, this was forfeited to the seller if the buyer breaches the contract, and double the value of the earnest money was forfeited by the seller if he breaches the contract.
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This entry incorporates text from “Obligatio consensu” on English Wikipedia. Contributors are listed in the page history. Text is available under the Creative Commons Attribution-ShareAlike 4.0 License. Selected authority identifiers and statements are retrieved from Wikidata under CC0; their references and qualifiers remain part of the verification path.