What contracts are consensual, and what real, depends chiefly on
positive law. No natural law can tell whether buying and selling, for
instance, be a consensual or a real contract. The interest of this
particular case is when the goods are lost in transmission: then
whichever of the two parties at the time be determined to be the
owner, apart from culpable negligence or contrary agreement of the
sender, he bears the loss, on the principle, _res perit domino_.
4. Contracts are otherwise divided as _onerous_ and _gratuitous_. In
an onerous contract either party renders some advantage in return for
the advantage that he receives, as when Titius hires the horse of
Caius. In a gratuitous contract all the advantage is on one side, as
when Titius does not hire but borrows a horse. The Roman lawyers
further distinguish contracts, somewhat humorously, into _contracts
with names_ and _contracts without names_, or _nominate_ and
_innominate_, as anatomists name a certain bone the _innominate bone_,
and a certain artery the _innominate artery_. _Innominate contracts_
are reckoned four: _I give on the terms of your giving_, otherwise
than as buying and selling,--to some forms of this there are English
names, as _exchange_ and _barter_: _I do on the terms of your doing: I
do on the terms of your giving: I give on the terms of your doing_.
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