Definition
In civil law, innominate contracts are agreements that do not fall within the named, recognized categories of Roman contract law. Where Roman law gave specific names and specific remedies to four principal contract types — re (contracts concluded by delivery), verbis (by spoken words), literis (by writing), and consensu (by consent) — innominate contracts were those that fit none of these categories cleanly, often combining elements of two or more.
The term means, literally, "unnamed." These were not lawless transactions, but they were agreements for which no specific named action existed. Enforcement came through a general action, historically the actio praescriptis verbis or an action on the case, rather than through the precise remedy attached to a nominate contract.
Roman jurists organized innominate contracts into four functional classes based on the nature of each party's performance:
— Do ut des: I give so that you may give (an exchange of things)
— Do ut facias: I give so that you may do (I transfer something in exchange for an act)
— Facio ut des: I do so that you may give (I perform an act in exchange for a thing)
— Facio ut facias: I do so that you may do (an exchange of acts or services)
The most frequently cited examples of innominate contracts are permutatio (barter or exchange), de aestimato (a contract for the sale of goods at a set price, with the remainder returned if unsold), precarium (a revocable grant of use), and transactio (compromise or settlement of a dispute).
---
Common Confusion
"Innominate contract" carries a distinct and unrelated meaning in Scots law and in some modern common law contexts, where it refers to a contractual term that is neither a condition nor a warranty — an intermediate term whose breach may or may not give rise to a right to terminate depending on the severity of consequences. This modern usage, prominent since the English Court of Appeal's treatment of such terms in the mid-twentieth century, has no historical connection to the Roman law concept described here. Researchers encountering "innominate term" or "innominate contract" in modern common law materials should not assume any continuity with the civil law classification system. The label was borrowed and redeployed in an entirely different analytical framework.
---
Why It Matters in Research
The primary research trap with innominate contracts is the terminology collision described above. A nineteenth-century treatise using "innominate contract" is almost certainly speaking about Roman law contract classification. A modern English or Commonwealth case using the same phrase is almost certainly speaking about an intermediate contractual term. These are separate doctrines that happen to share a name.
For researchers working in the Law Mind corpus on civil law, Louisiana law, Quebec law, Scottish law, or comparative private law, innominate contracts in the Roman sense are a structural concept that underlies how obligations were classified and enforced. Understanding the four-class framework (do ut des, do ut facias, facio ut des, facio ut facias) is essential to reading Digest citations accurately, particularly Digest 2.14.7.2, which several historical sources cite directly.
Researchers should also note that the four named categories — nominate contracts — had fully developed, named remedies attached to them. The significance of innominate status was procedural as much as substantive: the party who had performed first under an innominate contract could bring a general action to compel the counter-performance, but only after having rendered their own performance. This conditionality distinguishes innominate enforcement from nominate enforcement and appears in commentary across Romanist sources.
The specific contracts listed as examples (permutatio, de aestimato, precarium, transactio) each have their own doctrinal histories. Precarium in particular has a complicated relationship to possession and property rights that extends well beyond the innominate contract framework. Researchers should not treat "innominate contract" as the primary entry point for those terms — each warrants independent investigation.
---
Historical Dictionary Support
The three source dictionaries agree on the core meaning: innominate contracts are unnamed civil law contracts lacking a specific remedy, reduced by Roman jurists to the four do/facio classes.
Black's Law Dictionary emphasizes the remedial dimension — these contracts had no certain or precise remedy appointed, only a general action on the case — and cites Digest 2.1.4.7.2 (the citation appears compressed in the source; the authoritative reference is Dig. 19.4.5 and Dig. 2.14.7.2). This procedural framing is useful for researchers focused on Roman civil procedure.
Rapalje & Lawrence offers the most analytical description, characterizing innominate contracts as "neither re, verbis, literis, nor consensu simply, but some mixture of or variation upon two or more of such contracts." This framing — innominate as hybrid rather than merely residual — is substantively important and not fully captured by Black's or Bouvier's. Rapalje & Lawrence also provides the most complete list of examples: permutatio, de aestimato, precarium, transactio, attributed to Brown's Law Dictionary.
Bouvier's Law Dictionary takes the most institutional approach, citing the Institutes (Inst. 2.10.13) alongside the Digest, and presenting the four-class reduction as the Roman lawyers' own organizational response to an otherwise unruly category. Bouvier's framing makes clear that while the contracts were innominate, their enforcement framework was systematized.
What the historical sources collectively omit: any discussion of the modern common law appropriation of the term for intermediate contractual terms. They also do not address the survival of innominate contract doctrine in mixed civil law jurisdictions (Louisiana, Quebec, South Africa). Researchers using these dictionaries as primary authorities should supplement with civilian treatises and modern comparative law sources when working in those jurisdictions.
---
Jurisdictional Note
Innominate contracts as a civil law classification remain relevant in mixed jurisdictions including Louisiana, Quebec, and South Africa, where Romanist foundations persist in private law. In purely common law jurisdictions, the phrase has been repurposed to describe intermediate contractual terms, a usage carrying no doctrinal connection to the Roman classification system.
---