Definition
Nominate contracts are a category of contracts recognized in Roman and civil law that possessed a specific, recognized name and a defined legal form. The name distinguishes them from innominate contracts, which lacked an official designation and were enforced under more general principles.
The classification organized contracts according to the manner in which they were formed or came into legal existence. A contract was "nominate" because it fit a named type already acknowledged by the legal system, carrying with it established rules about obligation, remedy, and enforcement. The innominate contract, by contrast, covered transactions that did not fall within any recognized category but were nonetheless binding once one party had performed.
Common Confusion
NOMINATE CONTRACTS vs. INNOMINATE CONTRACTS: These terms are mirror opposites, and confusion arises when researchers encounter historical sources that discuss Roman contract law without clearly distinguishing the two. Nominate contracts carried a proper name and an established legal framework. Innominate contracts were residual — enforceable once performance began, but lacking the structured rules that attached to the nominate categories. The distinction matters for understanding the scope of civil-law obligation and the remedies available to the parties.
NOMINATE CONTRACTS vs. FORMAL CONTRACTS: A formal contract in common-law usage refers to one that derives binding force from its form (such as a deed under seal). Nominate contracts in the civil-law sense are classified by their recognized type and the mode of their creation, not simply by formality. The overlap in language can mislead researchers working across common-law and civil-law sources.
Core Elements
The four classical kinds of nominate contracts, organized by how they were formed:
1. REAL CONTRACTS (ex re): Arose from the delivery of a thing. The obligation was created by the transfer of property, not by agreement alone. Examples include mutuum (loan for consumption), commodatum (loan for use), depositum (deposit), and pignus (pledge).
2. VERBAL CONTRACTS (ex verbis): Arose from the spoken word. The formal exchange of prescribed words — most classically the stipulatio — constituted the obligation. The verbal form was essential; without it, no contract of this type existed.
3. LITERAL CONTRACTS (ex literis): Arose from a written entry. In classical Roman law, this referred specifically to entries made in account books (the chirographum and similar instruments) that created binding obligations by their inscription.
4. CONSENSUAL CONTRACTS (ex consensu): Arose from consent alone, without requiring any particular form, delivery, or writing. The major consensual contracts were sale (emptio venditio), hire (locatio conductio), partnership (societas), and mandate (mandatum).
Why It Matters in Research
This term is almost exclusively a civil-law and legal-history term. Researchers will encounter it primarily in:
— Historical treatises on Roman law and the civil-law tradition, including works by Justinian-era jurists and later civilians;
— Comparative law materials examining the structural differences between civil-law and common-law contract regimes;
— Louisiana, Quebec, and other mixed-jurisdiction sources, where civilian contract categories have occasionally influenced doctrine or terminology;
— Older Anglo-American legal dictionaries and encyclopedias that catalogued civilian concepts for the benefit of common-law practitioners.
The term is largely absent from modern common-law case law and statutes. When it appears in 19th-century American legal dictionaries or treatises, it is almost always descriptive of Roman or continental doctrine rather than operative law in U.S. or English courts. Researchers should not assume that the nominate/innominate distinction carries any direct doctrinal weight in common-law jurisdictions without tracing the specific source's claim carefully.
The classification also carries historical significance for understanding why certain contracts required strict formal elements while others did not — a structural question that echoes in modern debates about consideration, formality, and the enforceability of informal agreements.
Historical Dictionary Support
Black's Law Dictionary (2nd Ed., Supplemental) defines nominate contracts as civil-law contracts "having a proper or peculiar name and form," divided into the four kinds described above, citing Calvin. The entry is accurate as far as it goes but is brief. It does not address innominate contracts, the historical decline of the strict literal contract category, or the survival of the consensual contract categories as the most practically significant branch.
The Calvin citation refers to Johannes Calvinus (Jean Calvin the jurist, not the theologian), whose Lexicon Juridicum was a standard reference for civil-law terminology and is the likely source for the fourfold classification as presented. Historical sources generally agree on the fourfold division, though some treat the literal contract category as largely obsolete by the classical period, surviving mainly in Justinian's restatement for systematic completeness.
What historical dictionaries miss: the relationship between nominate contracts and the actiones in Roman procedure — the point that having a nominate contract mattered partly because it entitled the party to a specific named action (actio venditi, actio locati, etc.), while innominate contracts required resort to the actio praescriptis verbis or the condictio. This procedural dimension is essential context that brief dictionary entries uniformly omit.
Jurisdictional Note
The nominate/innominate distinction retains analytical relevance in civil-law jurisdictions, including France, Spain, and their legal descendants. Louisiana courts and scholars occasionally invoke the civilian framework in contract disputes, and Quebec's Civil Code preserves a more explicit civilian structure. In purely common-law jurisdictions, the terminology is historical and comparative rather than operative.