Legal Definitions - pactum

In legal terms, a pactum refers to an agreement or understanding between parties. While similar to a contract, a pactum is generally considered less formal and might not always meet all the strict requirements for a legally enforceable contract in modern legal systems. It signifies a mutual consent or arrangement.

• Example 1: Informal Carpool Arrangement

  Sarah and Tom agree that Sarah will drive Tom to work every Monday, and Tom will drive Sarah every Tuesday. They shake hands on it, but don't write anything down or discuss specific legal consequences if one misses a day.

  This illustrates a pactum because it's an informal agreement based on mutual understanding and cooperation, without the detailed terms and conditions typically found in a formal contract.

• Example 2: Neighborhood Watch Commitment

  Residents of a street hold a meeting and agree to take turns patrolling their neighborhood each night to deter crime. They create a schedule and commit to it verbally.

  This is a pactum as it's a collective agreement among neighbors to undertake a shared responsibility, relying on good faith rather than a legally binding document.

• Example 3: Study Group Rules

  Five university students decide to form a study group. They agree that everyone must come prepared, contribute equally, and meet twice a week. There are no written rules or penalties for non-compliance.

  This represents a pactum because it's an agreement on how the group will operate, based on shared goals and an informal understanding of mutual obligations.

Specific Types of Pactum:

Pactum Corvinum de Hereditate Viventis

This term refers to an agreement concerning the inheritance of a person who is still alive. Such agreements are often viewed with skepticism or are legally restricted in many jurisdictions due to public policy concerns, as they can encourage individuals to anticipate or even wish for the death of another.

• Example 1: Anticipating an Inheritance

  A wealthy aunt, still in good health, tells her nephew that if he agrees to manage her estate for the next five years, she will ensure he receives a specific piece of valuable artwork in her will. The nephew agrees.

  This is a pactum corvinum because it's an agreement made while the aunt is alive, dictating a specific inheritance outcome upon her future death.

• Example 2: Selling Future Inheritance Rights

  A financially struggling individual, knowing they are a beneficiary in their elderly parent's will, enters into an agreement with a third party to sell a portion of their expected inheritance for an immediate cash payment. The parent is still alive and unaware of this arrangement.

  This illustrates a pactum corvinum as it's an agreement to transfer rights to an inheritance before the person whose estate is involved has passed away.

Pactum de Constituto

This is an informal agreement to pay an existing debt, whether one's own or someone else's, by a specified time. It serves as a promise to settle an obligation without necessarily creating a new, formal contract.

• Example 1: Friend's Loan Repayment

  Mark owes his friend Lisa $500. He tells her, "I promise to pay you back the full $500 by the end of next month," and Lisa agrees to this timeline.

  This is a pactum de constituto because it's an informal agreement to pay an existing debt by a fixed date.

• Example 2: Parent Covering Child's Debt

  A college student owes their landlord two months' rent. The student's parent calls the landlord and informally agrees, "I will ensure that the outstanding rent is paid in full by the 15th of next month."

  This demonstrates a pactum de constituto as it's an informal promise by a third party (the parent) to pay an existing debt (the student's rent) by a specific deadline.

Pactum de Non Petendo

An agreement where a creditor promises not to enforce a debt. Essentially, it's a promise by the person owed money not to sue or demand payment for that debt.

• Example 1: Waiving a Small Debt

  A small business owner is owed $100 by a long-time, loyal customer who is experiencing financial hardship. The owner tells the customer, "Don't worry about that $100; consider it paid."

  This is a pactum de non petendo because the creditor (business owner) has agreed not to pursue collection of the debt.

• Example 2: Settlement Agreement Clause

  In a dispute over a past invoice, a supplier and a client reach an agreement. As part of the settlement, the supplier formally states in writing that they will not seek to collect any remaining balance on that specific invoice.

  This illustrates a pactum de non petendo as it's an explicit agreement by the creditor (supplier) to refrain from enforcing the debt.

Pactum de Quota Litis

This is an agreement where a creditor promises to pay a portion of a difficult-to-collect debt to a person who successfully collects it, or an agreement to share the proceeds of a lawsuit.

• Example 1: Debt Collection Commission

  A company is owed a significant amount by a defaulting client. They hire a specialized collection agency and agree that the agency will receive 25% of whatever amount they successfully recover from the client.

  This is a pactum de quota litis because it's an agreement to share a portion of a collected debt with the party responsible for its recovery.

• Example 2: Litigation Funding Arrangement

  An inventor with limited funds wants to sue a large corporation for patent infringement. A litigation finance firm agrees to cover all legal costs in exchange for 30% of any damages awarded if the lawsuit is successful.

  This illustrates a pactum de quota litis as it's an agreement to share the proceeds of a litigation with a party providing financial support.

Pactum de Retrovendendo

An agreement that grants the original seller the right to repurchase an item they sold, within a specific timeframe and at a predetermined price.

• Example 1: Antique Resale Option

  An antique dealer sells a rare vase to a collector. In their sales agreement, they include a clause stating that if the collector decides to sell the vase within the next five years, the original dealer has the first right to buy it back for the original sale price plus 10%.

  This is a pactum de retrovendendo because it gives the original seller the option to repurchase the item under specified conditions.

• Example 2: Startup Founder's Buyback Right

  A startup founder sells a portion of their company shares to an early investor. The agreement includes a provision that if the founder leaves the company within two years, the company (or the founder) has the right to buy back those shares at a pre-agreed valuation.

  This illustrates a pactum de retrovendendo as it establishes a right for the original seller (or entity associated with them) to repurchase the sold asset under certain conditions.

Pactum Displicentiae

This refers to a "sale on approval," where the buyer takes possession of an item with the option to return it if they are not satisfied after a trial period.

• Example 1: Software Trial Purchase

  A graphic designer purchases a new design software package with a "30-day satisfaction guarantee." If they are not happy with its performance within that month, they can return it for a full refund.

  This is a pactum displicentiae because the buyer has the right to try the product and reject it if it doesn't meet their expectations.

• Example 2: Home Appliance Test Period

  A customer buys a new vacuum cleaner from a store that offers a "14-day home trial." They can use the vacuum for two weeks and return it for any reason if they are not completely satisfied.

  This illustrates a pactum displicentiae as it's a sale where the buyer has a trial period to evaluate the item and the option to return it.

Pactum Donationis

An agreement or promise to make a gift. Historically, such agreements were not always enforceable, but some legal systems later recognized their validity, especially for certain amounts or under specific conditions.

• Example 1: Promise of a Future Gift

  A grandparent promises their grandchild that they will give them a significant sum of money for their college education when the grandchild turns 18.

  This is a pactum donationis because it's an agreement or promise to bestow a gift in the future.

• Example 2: Charitable Pledge

  A wealthy philanthropist formally pledges to donate $1 million to a local hospital's new wing construction fund, to be paid over five years.

  This illustrates a pactum donationis as it's a committed agreement to make a gift to a charitable organization.

Pactum Illicitum

This term refers to an illegal agreement, meaning an agreement that is contrary to law, public policy, or morality. Such agreements are typically unenforceable in a court of law.

• Example 1: Agreement to Commit a Crime

  Two individuals agree to break into a warehouse and steal valuable electronics, planning how they will divide the stolen goods.

  This is a pactum illicitum because it's an agreement to commit a criminal act, making it illegal and unenforceable.

• Example 2: Contract for Illegal Services

  A person pays another to destroy a competitor's business property.

  This illustrates a pactum illicitum as the agreement involves an illegal act (vandalism/destruction of property) and is therefore void.

Pactum Legis Commissoriae (and Pactum Legis Commissoriae in Pignoribus)

This is an agreement where, if a buyer fails to pay for an item by a certain date, the seller automatically keeps both the item and any payments already made. In the context of a pledge (in pignoribus), it means the lender (pledgee) automatically keeps the pledged item if the borrower fails to repay the loan. This type of clause is often prohibited in modern law as it can be exploitative.

• Example 1: Conditional Sale of Equipment

  A farmer buys a tractor from a dealer, agreeing to pay in monthly installments. The contract states that if any payment is missed, the dealer can repossess the tractor, and the farmer forfeits all payments made up to that point.

  This is a pactum legis commissoriae because it's a forfeiture clause where the seller keeps the property and prior payments upon the buyer's default.

• Example 2: Pawn Shop Forfeiture

  Someone pawns a valuable watch for a loan, agreeing that if the loan is not repaid by a specific date, the pawn shop automatically becomes the owner of the watch, and the borrower loses any right to reclaim it.

  This illustrates a pactum legis commissoriae in pignoribus as it's an agreement in a pledge scenario where the pledged item is forfeited to the lender upon default.

Pactum Liberatorium

This refers to an agreement that releases parties from obligations related to a "real right," which is a right connected to property (e.g., ownership, easements). Historically, this type of agreement would have allowed parties to waive or extinguish a property-related claim or burden. This concept is largely obsolete in modern legal systems.

• Example 1: Waiving a Right of Way (Historical Context)

  Historically, if a landowner had a right of way (an easement) across a neighbor's property, they might enter into a pactum liberatorium with the neighbor to formally give up that right, thereby "liberating" the neighbor's property from that burden.

  This would have been a pactum liberatorium because it's an agreement to release a party from a real right (the burden of an easement on their property).

• Example 2: Releasing a Property Claim (Historical Context)

  Two individuals both claim ownership of a specific parcel of land. They could, through a pactum liberatorium, agree that one party formally renounces their claim, thereby freeing the other party's ownership from that dispute.

  This illustrates a pactum liberatorium as it's an agreement to release a party from a claim or obligation related to property ownership.