Giuliano e i nova negotia: sulla tutela dei c.d. contratti innominati tra l’età traianea e l’età dei Severi

Abstract

The study deals with Julian's thought on the protection of innominate contracts. In this regard, the idea is widespread that the jurist was opposed to an enlargement of the contractual sphere beyond the figures recognized at the edictal level. This conviction is based primarily on Ulp. 4 ad ed. D. 2.14.7.2, well-known testimony in which Julian is reprimanded by Maurician and Ulpian for having granted an action in factum about a case of eviction, for which, according to both jurists his successors, he could have acted with the actio civilis incerti. The study disputes this idea and comes to the conclusion rather than to determine Julian’s solution of Ulp. 4 ad ed. it was a functional (or economic) evaluation of the affair, which presented characters such that placed it in a border area between negotium and donatio, thus making uncertain, at least from Julian’s point of view, the presence of that mutuality of economic advantages (synallagma), which justified, according to the Ariston’s doctrine, the recourse to contractual action (a.c.i.)