RECEPTION OF CONTRACTUAL CONSTRUCTIONS: UNNAMED CONTRACTS

Abstract

The article is devoted to the study of contractual structures, which in Roman private law acquired their most extensive development, study and development. It is concluded that in Roman private law as a limitless source of civil norms and rules, the division of private law contracts, which were called contracts, into four exhaustive groups was initiated according to the criterion of the emergence of obligations: 1) by word (verbis); 2) by letter (litteris); 3) by thing (re contrahitur obligatio) or 4) by consent (consensu). Taking into account the diversity of Roman contracts, which were able to satisfy all the needs of economic Roman circulation, the Roman system of contract law was conditioned by strict typification. It is noted that with the rapid development of society, economic and business relations, new private law agreements appeared, which in their essence did not fall under any group of the above-mentioned formal contracts. Over time, when these agreements began to be protected at the praetorian level, they began to be called innominal contracts. The principle of freedom of contract and the place of the theory of autonomy of will are analyzed. Elements of freedom of contract are also highlighted. Special attention is paid to the systematization of innominal contracts in Justinian’s Digests, which were divided into four groups and the characteristics of the following types of innominal contracts: barter contract, valuation contract, conditional gift contract, peace agreement, precarium. It is concluded that due to the ability of jurisprudence, which through its efforts was able to clarify and disseminate new contractual structures, and the efforts of the praetors, who provided actiones infactum, and also allowed general means of protection - action civilis, innominal contracts gained their wide application and entered the legal tradition of Rome. It is noted that they received their general name – non-nominal contracts only in the Middle Ages, thanks to the careful study and reception by medieval lawyers of Roman private law. It is concluded that European legal science was based on a received theoretical basis, judicial practice, which developed due to the resolution of various cases, which passed through the prism of deep legal analysis by Roman lawyers and were reflected in modern legislation and legal theory of Ukraine.