Учебный год 22-23 / The Law of Obligations

jurists to apply the fiction, was the fact that satisfaction of the condition was prevented by a party who had an interest in its non-fulfilment; but for the satisfaction of the condition, the heir did not have to release the slave, and promisor as well as purchaser were under no obligation to pay. The general rule that eventually emerged was therefore formulated in the following terms:

"In iure civili rcceptum est, quotiens per eum, cuius interest condicionem non impleri, fiat quo minus impleatur, perinde haberi, ac si impleta condicio fuisset."100

Or, as the fathers of the German BGB were to put it: if the fulfilment of a condition is prevented by the party to whose disadvantage it would operate, the condition is deemed to have been fulfilled.101

III. RESOLUTIVE CONDITIONS 1.

The construction of resolutive conditions

"If a legal transaction is entered into subject to a resolutive condition, the effect of the transaction lapses upon fulfilment of the condition; at this moment the former legal position is restored."

With these words the BGB102 introduces the second type of condition recognized by most modern legal systems.103 The Roman lawyers did not put it quite like that when they referred to an arrangement by the parties, according to which a contract was to be resolved upon the occurrence, or non-occurrence, of a future uncertain event. Only occasionally did they use formulations in which we can already detect a ring of the modern conceptual analysis. "[S]ub condicione resolvi emptio . . . videatur",104 or "constat . . . resolvi emptionem sub condicione",105 they said, thus indicating that a sale could be dissolved rather than contracted conditionally. But did they really mean to imply,

100Ulp. D. 50, 17, 161; cf. also Iul. D. 35, 1, 24; on which see Kakhthaler, op. cit., note 9, pp. 25 sqq.; Masi, Condizione, pp. 220 sqq. Another fiction, incidentally, that came to be recognized in post-classical, but possibly even in classical law, remained confined to the law of testamentary dispositions: a condition is held to be satisfied if the potential beneficiary was prevented from actual satisfaction due to circumstances which were outside his control (si per eum non stat, quominus impleatur); cf. UE 2, 6; Hermog. D. 35, 1, 94; Paul. D. 40, 7, 20, 3;Masi, Condizione, pp. 227 sqq.; Kaser, RPrl, p. 257; idem, RPr II, p. 97; for a modern comparative discussion, see A.B. Schwarz, "Bedingung", in: Franz Schlegelberger (ed.),

Rechtsverqleichetides Handworterbuch fur das Zivilund Handelsrecht des Inund Auslandes, vol. II (1929), pp. 415 sqq.

101However, the German legislator attempted to specify the manner in which fulfilment of the condition had to have been prevented and therefore added the words "in violation of the precepts of good faith" ("wider Treu und Glauben"), He thus appears to have restricted the application of the "prevention equals satisfaction" rule. Yet this was not his intention; on

the contrary, he devised this clause in order to emphasize the width of its range of operation; for a detailed analysis, see Knutel, 1976 Juristische Blatter 613 sqq., 616 sqq.

102§ 158 II.

103For South African law, cf. Joubert, Contract, pp. 172 sq.; generally, see Schwarz, op.

cit., note 100, pp. 395 sqq. 104 Ulp. D. 18, 3, 1.

1(15 Ulp. D. 18, 1, 3.

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with these phrases, that the sale itself was subject to a (resolutive) condition?106 Or did they not rather regard the sale as unconditional, yet accompanied by an informal pactum, according to which the contract was under certain circumstances to be dissolved?107 It would then have been this dissolution pactum108 which was subject to a condition, in the ordinary (Roman) sense of the word: it was supposed to become effective only upon the occurrence, or non-occurrence, of a future uncertain event. This is the kind of construction which Ulpian appears to have in mind in D. 18, 2, 2 pr., where he describes the situation in the following terms: ". . . pura emptio est, sed sub condicione resolvitur. "109 But we should be careful not to read all too subtle nuances into our sources and to use one or another specific turn of phrase as a basis for substantive distinctions.110 Even if—as appears to me more likely—the Roman lawyers at least originally111 tended to regard the resolutio venditionis as being sub condicione (suspensiva), they thereby recognized the possibility of subjecting a contract of sale to what in actual fact and for all practical purposes amounted to resolutive conditions.112

2. The admissibility of resolutive conditions

It is no mere accident that all the sources just referred to deal with emptio venditio. Sale was a bonae fidei contract, and it was the "ex bona fide" clause contained in the formulae of the actiones venditi and empti that enabled the Roman lawyers to take account of all informal arrangements between the parties when it came to determining whether either of the actions could be brought. If, therefore, the parties had arranged that their contract should be dissolved upon the occurrence, or non-occurrence, of an uncertain future event, what could have been more in accordance with good faith than to give effect to this

106 Cf. Rudolf Henle, "Die rechtliche Natur der in diem addktio beim Kaufvertrage", in:

Festschrift far Paul Koschaker, vol. II (1939), pp. 188 sqq.; Arangio-Ruiz. Compravendita, pp. 405, 407; Kaser, RPr I, p. 257; HonseUVMayer-Maly/Selb, p. 92.

107Cf. Windscheid/Kipp, § 86, n. 6; Franz Wieacker, Lex commissoria, 1932, pp. 31 sqq. Generally on the construction of resolutive conditions and on the views adopted in 19th-century legal science, cf. also Markus Knellwolf, Zur Konstruktion des Kaufs auf Probe (1987), pp. 105 sqq.

108On which see, in general, Paul. D. 18, 5, 3 ("Emptio et venditio sicut consensu

contrahitur, ita contrario consensu resolvitur, antequam fuerit res secuta"); Iul. D. 18, 5, 5, 1 ("Emptio nuda conventione dissolvitur, si res secuta non fuerit"}; Knutel, Contrarius consensus, passim.

109Ulp. D. 18, 2, 2 pr.

110A point that has been emphasized by Peters, RUcktrittsvorbehalte, p. 94.

111Rabel, Grundziige, pp. 175 sq.

112Contra: Werner Flume, "Die Aufhebungsabreden beim Kauf"—lex commissoria, in diem addictio und sogenanntes pactum displicentiae—und die Bedingung nach der Lehre der romischen Klassiker", in: Festschrift fur Max Kaser (1976), pp. 309 sqq.; idem, "Der bedingte Rechtsakt nach den Vorstellungen der romischen Klassiker", (1975) 92 ZSS 68 sqq., 72 sq. He argues that, since the legal act itself (and not only the legal relationship created by it) was regarded as being sub condicione by the Roman lawyers, its subjection to a resolutive condition was conceptually impossible.

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arrangement? The same considerations, of course, applied with regard to the other consensual contracts. They did not, however, apply to stipulations. Here the rigid formula of the condictio did not enable judges to pay attention to informal dissolution pacta, and a resolutive condition contained in the wording of the stipulation itself was, iure civili, simply ignored.113 A stipulation for one hundred "nisi navis ex Asia venerit"114 was therefore regarded as an absolute promise. Praetorian intervention, however, ensured that the clause at least had some effect; for if the stipulator sued for the promised sum after the ship had arrived from Asia, his claim could be barred by either the exceptio doli or the exceptio pacti.115 Absolute legal rights and positions such as ownership, freedom or patria potestas could not be conferred or granted for some time only;116 if they were subjected to a resolutive condition, the whole transaction was thus, apparently, invalid.117 Actus legitimi,118 too, could no more be resolved than brought about sub condicione.

3. The effects of resolutive conditions

What, then, were the effects of a resolutive condition where the parties were in fact able to append it to their contract? None for the time being; for the transaction was regarded as "pura",119 which meant that it instantly became fully effective. Thus, for example, the parties had to render their performances, the contract provided a iusta causa traditionis as well as usucapionis, and a contract of sale was regarded as perfecta (with the result that the risk passed to the purchaser).120 If the condition was satisfied, on the other hand, the contract was dissolved and restitution had to be effected: the purchaser could claim back the purchase price, the vendor the object of the sale. For this purpose

would have been in conflict with the non-recognition of suspensive conditions in formal releases (acceptilationes). Acceptilationes belonged to the actus legitimi of Pap. D. 50, 17, 77; cf. supra, note 13.

114Paul. D. 44, 7, 44, 2.

115Paul. D. 44, 7, 44, 2; Honsell/Mayer-Maly/Selb, p. 92.

116Cf. vat. 283 ("cum ad tcmpus [?; cf. infra, note 125] proprietas transferri nequiverit"); Paul. D. 40, 4, 33 ("Libertas ad tempus dari non potest"); Lab./Paul. D. 1, 7, 34 (". . . nee enim moribus nostris convenit ftlium temporalem habere"). As far as institutio heredis was concerned, the rule was semel hcres, semper hcres; cf. Gai. II, 184; Gai. D. 28, 5, 89.

117Honsell/Mayer-Maly/Selb, p. 92. A resolutive condition contained in a will—in violation of semel hcres semper hercs — was, however, regarded as pro non scripto (Kaser,

RPrl, p. 688).

11H Pap. D. 50, 17, 77.

m Cf. Ulp. D. 18, 2, 2 pr. On the technical term "purus" (unconditional, in the sense of not subject to a suspensive condition), see Inst. Ill, 15, 2 ("Omnis stipulatio aut pure aut in diem aut sub condicione fit. . . .") and, today still art. 1584 code civil ("La vente pent etrejaite purement et simptement, ou sous tine condition soil suspensive, soil resolutoire"). In England, the term "absolute" is often used in contradistinction to "conditional".

120 Iul./Ulp. D. 18, 2, 2, 1; for all details, see Peters, Rucktrittsvorbehalte, pp. 152 sqq.

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venditi121—rather surprisingly so, in view of the fact that the contract of sale no longer existed.122 Various attempts were made to explain this apparent dogmatical inconsistency; Papinian, for example, argued that, since the parties had initially contracted a sale, the dissolution of their relationship, too, had to follow the rules of sale.123 This was not a particularly compelling proposition and thus we find Ulpian merely referring to an authoritative ruling on the matter: "[E]t quidem finita est emptio", he stressed, but then he added: "sed iam decisa quaestio est ex vendito actionem competere, ut rescriptis imperatoris Antonini et divi Severi declaratur."124 Ownership in the object of the sale, incidentally, automatically reverted to the vendor on satisfaction of the resolutive condition. There is ample support in our sources for this proposition:125 thus, for instance, we read that the purchaser could no longer avail himself of an action in rem after the event, upon which the resolution of the contract hinged, had occurred;126 and if the purchaser had in the meantime pledged the object of the sale, the encumbrance fell away with the dissolution of the contract: "ex quo colligitur", writes Marcellus,127 "quod emptor medio tempore dominus est: alioquin nee pignus teneret." But he was owner only "medio tempore", not after the condition had been satisfied. The vendor was therefore able to avail himself of the rei vindicatio to reclaim the object

121The relevant sources are analysed by Peters, Riicktrittsvorbehalte, pp. 262 sqq.

122The object of the sale was usually regarded as "inemptus": cf., for instance, Pomp. D. 18, 3, 2 and Owe Wesel, "Zur dinglichen Wirkung der Ruckttrittsvorbehalte des romischen Kaufs", (1968) 85 ZSS 163 sqq.

123Vat. 14 ("Lege venditionis inempto praedio facto fructus interea perccptos iudicio venditi restitui placuit, quoniam eo iure contractum in exordio videtur . . ."). Cf. further the

somewhat strained explanation offered by Pomp. D. 18, 1, 6, 1.

124Ulp. D. 18, 3, 4 pr.

125Which is, nevertheless, rejected by a large body of opinion; cf. Wieacker, op. cit., note

107, pp. 45 sqq.; Ernst Levy, "Zu den Rucktrittsvorbehalten des romischen Kaufs", in: Gesammelte Schriften, vol. II (1963), pp. 117 sqq.; De Zulueta, Sale, p. 56; Arangio-Ruiz, Compravendita, pp. 420 sqq.; Flume, Festschrift Kaser, pp. 310 sqq., 320 sqq. The strongest argument in favour of these authors is vat. 283, which appears to declare, quite unequivocally, that ownership may not be transferred merely for some time (". . . cum ad tempus proprietas transferri nequiverit"). Attention has, however, been drawn to the fact that the manuscript of the Fragmenta Vaiicana has "ad te" rather than "ad tempus". The text may therefore have referred to the individual case in question which involved a donation "ut post mortem eius qui accepit ad te rediret". Transfer of ownership on account of a donation may thus have been treated differently in this respect than a transfer based on sale. For a detailed analysis, see Peters, RiicktrittsvorbehaUe, pp. 173 sqq.

In favour of an effect "in rem" of dissolution of a contract of sale are, apart from Peters, Rucktrittsvorbehalte, pp. 164 sqq., Wesel, (1968) 85 ZSS 94 sqq. and Kaser, RPr I, p. 562; cf. also Savigny, System, vol. Ill, p. 154; Vangerow, Pandekten, § 96; Windscheid/Kipp, § 90, n. 1. As far as the discussion among the authors of the ius commune is concerned, cf. Gluck,

vol. 16, pp. 263 sqq., 295 sqq.; Wesel, (1968) 85 ZSS 96 sqq. 12fl Ulp. D. 6, 1, 41 pr.

127 Cf. Ulp. D. 18, 2, 4, 3; cf. also Marc./Ulp. D. 20, 6, 3.

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of the sale; usually, however, he preferred to bring the more convenient actio venditi.128

IV. PROVISIONS FOR CALLING OFF A SALE

Most of our texts by far, concerning resolutive conditions, deal with three specific clauses, frequently appended, by way of pacta ex continenti adiecta,129 to contracts of sale. These clauses were known as in diem addictio, lex commissoria and pactum displicentiae. Since they feature so prominently in our sources, it may not be inappropriate to pause for a moment and to look at how they operated.

1.In diem addictio

(a)Functions

"In diem addictio ita fit: 'ille fundus centum esto tibi emptus, nisi si quis

intra kalendas Ianuarias proximas meliorem condicionem fecerit, quo res a domino abeat'."130 This was the standard way131 of phrasing an in

diem addictio: let the land be sold to you, unless someone makes a better offer before the first of January next, on account of which the land departs from its owner. The clause was normally added to the contract at the instigation of the vendor;132 it provided him with an opportunity to explore all the possibilities of how best to sell his piece of property, while at the same time protecting him against the consequences of unfavourable developments on the market—he was assured of at least the price he had agreed upon with the present purchaser. A sale sub in diem addictione could, furthermore, serve as a convenient means of raising credit. The vendor received the money that he needed, without suffering the disadvantages normally connected with somewhat hasty emergency sales: he still retained the chance of finally obtaining better value for his land. Occasionally, however, inclusion of the clause could also lie in the interest of a purchaser, who still entertained some doubts as to whether it was really so wise for him to buy the land; the in diem addictio gave him a suitable opportunity to get out of the transaction.

138 On the advantages of the actio venditi (which allowed the vendor to claim compensation for damages, and profits), cf. Peters, Riickrrittsvorbehalte, pp. 202 sq., 263, 295.

On which see, in general, supra, pp. 509 sqq.

13(1 Paul. D. 18, 2, 1. On the phrase proposed in this fragment, see Wcsel, (1968) 85 ZSS 138;J.A.C. Thomas, "Provisions for Calling Off a Sale", (1967) 35 TR 561 sqq.; Peters,

RUcktrittsvarbehalte, pp. 8 sqq.

131According to Carlo Congo, "Sulla 'in diem addictio' e sulla 'lex commissoria1 nella vendita", (1921) 31 BIDR 40 sqq., and others, the only one. Contra, however, the writers referred to in the previous note.

132For what follows, see Peters, Riickirittsvorbehalte, p. 10.

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(b) Construction

Was this particular type of pactum adiectum to be construed as a resolutive or rather as a suspensive condition?133 Julian appears to have opined in favour of the former alternative,134 Pomponius in favour of the latter.135 Ulpian gave the typical lawyer's answer: it depends —

"[qjuotiens fundus in diem addicitur, utrum pura emptio est, sed sub condicione resolvitur, an vero condicionalis sit magis emptio, quaestionis est. et mihi videtur verius intercsse, quid actum sit."'3fi

The decisive criterion was thus the intention of the parties. If they wanted performance and counterperformance to be rendered immediately, then what they had in mind was "pura emptio, quae sub condicione resolvitur"; if, on the other hand, they wished to defer the implementation of their transaction until either a better offer had been made or the time set for the receipt of a better offer had elapsed, the sale was obviously "condicionalis". What the matter usually boiled down to, in the end, was which of the two parties had been able to prevail with his ideas concerning how the contract was to operate: the purchaser, as a rule, being interested in a resolutive condition (since he would then immediately receive the object of the sale), the vendor normally favouring suspension of the contract (for as long as he was still in possession of the object he had a greater chance of finding third parties interested in acquiring it).

(c) Interpretation

But even apart from that, in diem addictiones offered the Roman jurists plenty of scope to display their interpretive skills.137 Taking the typical intentions of reasonable Roman purchasers and vendors as their starting point, they worked out a refined and well-balanced set of principles. Generally speaking, they tended to favour the purchaser—quite in accordance with the notion that ambiguous terms should be interpreted to the disadvantage of the party that had (typically) introduced them into the transaction.138 Any doubt, for instance, as to whether the condition had been satisfied was held against the vendor; if two slaves had been sold separately to two purchasers for ten apiece and someone

133 CfRudolf Hcnlc, "Die rechtliche Natur der in diem addictio beim Kaufvertrage", in: Festschrift far Paul Koschaker, vol. II (1939), pp. 169 sqq.; Thomas, (1967) 35 TR 565 sqq.; Peters, Riicktrittsvorbehalte, pp. 98 sq., 100 sqq.

134Iul./Ulp. D. 18, 2, 2, 1; Iul./Paul. D. 41, 4, 2, 4.

135D. 18, 2, 4 pr.

136D. 18, 2, 2 pr. This text has often been regarded as interpolated; cL, for example, Longo, (1921) 31 BIDR 44 sq.; Arangio-Ruiz, Compravendita, pp. 408 sqq. Contra the

authors referred to in note 133.

137For details, sec Bechmann, Kauf, vol. II, pp. 502 sqq.; Gliick, vol. 16, pp. 239 sqq.; Thomas, (1967) 35 TR 565 sqq.; Peters, Riicktrittsvorbehalte, pp. 26 sqq.; on the origin of the in diem addictio, see Thielmann, Privatauktion, pp. 17 sqq., 34 sqq.; Peters, Rticktrittsvorbehalte, pp. 21 sqq.

138On interpretatio contra stipulatorem, see supra, pp. 639 sqq.

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offered thirty for the two, the sale was not dissolved as long as it remained uncertain for which of the slaves, if not for both, a better offer had been made.139 Furthermore, the purchaser was normally allowed to solicit, and accept, only one better offer.140 Whether or not in the end he accepted it, was left to his discretion; he was perfectly free to stand by the original contract.141 If, however, he decided to take up the second offer, he had to inform the (first) purchaser, so as to give him a chance to improve his own bid;142 and provided the first purchaser was prepared to match the second offer, the vendor could not call off the sale.143 The crucial question, obviously, in many cases was, under which circumstances the second offer could be regarded as "melior condicio". An increased price, interestingly, was not necessarily required. Even without it, there was a better offer if easier or earlier payment was proposed; or if a more convenient place of payment was suggested. Moreover, the price could even be lower, provided the newcomer was prepared to waive certain onerous provisions contained in the (first) contract of sale.144 Finally, an offer could also be deemed to be "better" if it was made by a more reliable person.145 The position was summed up crisply by Pomponius: "Quidquid enim ad utilitatem venditoris pertinet, pro meliore condicione haberi debet."146

2. Lex commissoria

Just as in the case of an in diem addictio, a standard form appears to have been used by the parties when they wished to add what was usually referred to as a lex commissoria147 to their sale: "si ad diem pecunia soluta non sit, ut fundus inemptus sit", they would tend to say or write.148 What this clause was designed to achieve is rather obvious:

Iul. D. 18, 2, 17 (". . . quod si incertum sit, ad utrius pretium addidcrit, a priore emptione non videtur esse discessum").

Sab./Ulp. D. 18, 2, 11 pr., as interpreted by Peters, Rikktrittsvorbehalte, pp. 41 sqq.; contra: Arangio-Ruiz, Compravendita, p. 402; Henle, Festschrift Koschaker, vol. II, p. 170. The parties were, however, able to provide differently (". . . sed Iulianus . . . scripsit interesse multum, quid inter conlrahentcs actum sit, nee impedire quicquam vel hoc agi, ut saepius fundus collocetur. dum vel prima vel secunda vel tertia adiectione res a venditore discedat").

Sab./Ulp. П. 18, 2, 9. Again, there could be a special agreement to the contrary. 142 Paul. D. 18, 2, 8.

■ Paul. D. 18, 2, 7. There was thus an obvious functional similarity to an auction sale; the technical details of how the two institutions related to each other are disputed. Cf. Mario Talamanca, "Contributo allo studio delle vendite all'asta ncl mondo classico", in: (1955) 6 Atti della accademia nazionale dei lincei 106 sq.; J.A.C. Thomas, "The Auction Sale in Roman Law", 1957 Juridical Review 42 sqq.; Thielmann, Privatauktion, pp. 17 sqq.; Peters,

Riicktrittsvorbehalte, pp. 11 sqq.

144Ulp. D. 18, 2. 4, 6.

145Pomp./Ulp D . 18, 2, 4, 6.

146D. 18, 2, 5.

147From committere — to forfeit (cf. Heumann/Seckel, pp. 80 sq.); ownership of the object of the sale, as far as it had already been transferred, fell back (was forfeited) to the vendor.

148Pomp. D. 18, 3, 2. But other formulations were possible; cf., for example, Pomp. D. 18, 1, 6, 1 and Thomas, (1967) 35 TR 563 sqq.

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the vendor was to be given the right to call off the sale if the purchase price had not been paid by a certain time.149 But for the lex

commissoria he could avail himself of the actio venditi against the purchaser only to claim the price or damages; a unilateral right of withdrawal on account of mora or any other form of breach of contract did not exist in Roman law.150 Unlike an in diem addictio, a lex commissoria was thus solely in the vendor's interest and it was, as a rule, taken to have a resolutive rather than a suspensive effect;151 after all, the lex commissoria aimed at inducing the purchaser to render payment timeously and the parties could thus normally be taken to have presupposed that the obligation to pay had in fact become effective. In order to make the whole arrangement workable, the jurists determined that the sale did not collapse, ipso iure, if by the due date the purchase price had not been paid; for that would, effectively, have allowed the purchaser to call off the sale if he no longer wanted to be bound by it. "Nam legem commissoriam . . . si volet venditor exercebit, non etiam invitus":152 the vendor had the option of using the actio venditi either to claim the purchase price or to recover the object that he had given.153 The reasonable interests of the purchaser were, however, safeguarded, in so far as the vendor had to make his election quickly and for good.154 Whether, furthermore, the purchaser had to have defaulted in the technical sense of the word before the vendor could exercise his right under the lex commissoria is not quite clear.155

Not unnaturally a lex commissoria was often agreed upon if the purchase price had to be paid in instalments; cf., for example, Pomp. D. 18, 1, 6, 1; Paul. D. 4, 4. 38 pr. (on the interpretation of the latter fragment, see Peters, Riicktrittsvorbehaite, pp. 77 sqq.; Detlef Liebs, "Der Sieg der schonen Ruriliana. Lex commissoria displicebat", in: Festschrift fur Max Kaser (1976), pp. 373 sqq.; Berthold Kupisch, "Rutiliana pupilla—schon oder energisch? (Paul. D. 4, 4, 38 pr.)", (1977) 94 ZSS 247 sqq.). Not infrequently an arrha was given at the conclusion of the sale. It was forfeited to the vendor if the contract was called off; otherwise it was credited against the purchase price (cf. Peters, Riicktrittsvorbehatte, p. 61). On the relationship between the Roman sale sub lege commissoria and the arrha transaction of Greek provenance, see Wicacker, op. cit., note 107, pp. 79 sqq.; Levy, Cesammelte Schriften,

vol. II, pp. 281 sqq.; Wescl, (1968) 85 ZSS 133 sqq.; Peters, Riicktrittsvorbehaite, pp. 60"sqq. 150 Cf. supra, pp. 578 sq. and infra, p. 801.

Ulp. D. 18, 3, 1: "Si fundus commissoria lege venierit, magis est, ut sub condicione resolvi emptio quam sub condicione contrahi videatur." Cf. further Sab./Paul. D. 41, 4, 2, 3; Pomp. D. 18, 3. 2; on which, see Wieacker, op. cit., note 107, pp. 19 sqq., 31 sqq., but

also Peters, Riicktrittsvorbehaite, pp. 112 sqq., 115 sqq. 152 Ulp. D. 18, 3, 3; cf. also Pomp. D. 18, 3, 2.

1яЛ Cf. also § 360 BGB, which still determines, for the same reason, that a forfeiture clause (i.e. a provision in the contract that the debtor shall forfeit his rights arising from the contract if he docs not perform his obligation) grants the creditor a right to rescind the contract (Mugdan, vol. II, p. 158). § 360, obviously, looks at the notion of a "lex commissoria" from a more genera! point of view; the rule is not confined to contracts of sale. At the same time it has lost much of its practical significance as a result of the fact that the BGB recognizes a

statutory right of rescission in case of mora debitoris; cf. infra, pp. 800, 802. 154Pap./Ulp. D. 18, 3, 4, 2.

155 Was fault on the part of the purchaser required? And did the vendor have to make a special demand (interpellatio) before calling off the sale? Cf. Ulp. D. 18, 3, 4, 4; Lab. D. 19,

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3.Pactum displicentiae

(a)Function

The subjection of a contract of sale to a pactum displicentiae, in turn, was solely in the interest of the purchaser. The clause was often phrased along the following lines: "ut si displicuisset [res] inempta [sit]",156 and a provision of this kind clearly left the determination of whether or not the contract was to stand completely in the purchaser's discretion: if he did not like the object he had bought, he was able, without further ado, to terminate the sale.157 As a rule, the parties specified a time within which the purchaser had to make up his mind;158 what happened if they didn't cannot be said with any degree of certainty.159 Occasionally, the right to invoke the pactum displicentiae was lost even before the period for approval had elapsed. Thus we read of the sale of three horses, which the purchaser was allowed to return within three days if he found them unsatisfactory. After having used the horses in a contest, and despite having won the first prize, he decided to return them. Under these circumstances, Ulpian allowed the vendor to claim the purchase price: "nam inter nos hoc actum", he argued,160 "ut experimentum

1, 51, 1; Scaev. D. 18, 3, 6 pr. and the discussion by Heinrich Siber, "Interpellatio und Mora", (1908) 29 ZSS 101 sqq.; Wieacker, op. cit., note 107, pp. 35 sq.; Peters,

Rucktrittsvorbehalte, pp. 71 sqq.

156Cf. Uip. D. 18, 1, 3; Ulp. D. 43, 24, 11, 13; Paul. D. 41, 4, 2, 5; C. 4, 58, 4 (Diocl. et Max.). The formulation was less standardized than in the case of an in diem addictio and a lex commissoria. Significantly, the compilers did not devote a special title of the Digest to this type of pactum.

157No objective reasons for the decision (as, for instance, that the object was defective) had to be provided; cf. Peters, Rikktrittsvorbehalte, pp. 87, 93; Karlheinz Misera, Der Kauf auf Probe, ANRW, vol. II, 14 (1982), p. 561; Kncliwolf, op. cit., note 107, pp. 16 sqq., 38 sqq. and passim. The pactum displicentiae thus constituted a potestative condition. In diem addictio and lex commissoria, on the other hand, were condiciones mixtae (i.e. potestative and casualis at one and the same time). Alternatively, it was, of course, quite possible that the vendor handed the object over to the purchaser "ad inspiciendum" (cf. Ulp. D. 19, 5, 17,

2)or "pretii explorandi gratia" (Pap. D. 19, 5, 1, 2), i.e. before a contract of sale had been concluded. The main problem, in these cases, was under which circumstances the inspector was liable if he lost the object. The answer was made to depend on utility considerations (cf.

supra, pp. 198 sq.): for details, see Misera, pp. 526 sqq.

158 Sab./Paul. D. 18, 5, 6; Paul. D. 41, 4, 2, 5; Meia/Ulp. D. 19, 5, 20, 1; Lab./Ulp. D. 19, 5, 20 pr. (triduum); Insl. Ill, 23, 4.

Cf. the speculations by Peters, RUcktrittsvorbehalte, pp. 90 sq. If a slave was sold "ut, nisi placuerit, rcdhibeatur", the period of two months provided in the aedilitian edict for the actio redhibitoria "adversus eum [qui] de his quae edicto aedilium continentur non caveat" (Gai. D. 21, 1, 28; cf. further supra, pp. 2%, 316) appears to have been applied per analogiam: ". . . si autem de tempore nihil convenerit, in factum actio intra sexaginta dies utiles accommodatur emptori ad redhibendum . . ." (Ulp. D. 21, 1, 31, 22). This pactum redhibendi relating to the sale of slaves served the same function, but was (probably) not identical to the pactum displicentiae relating to all other objects of sale. The former was closely related to the system of the aedilitian remedies and gave rise to an actio in factum ad redhibendum, not to the actiones empli or venditi; cf., apart from Ulp. D. 21, 1, 31, 22 sqq. also Pap. vat. 14 and the analysis by Misera, op. cit., note 157, pp. 531 sqq., 566 sqq. Contra (the two institutions were identical): Wieacker, op. cit., note 107, pp. 73 sq.; Levy, Gesammelte Schriften, vol. II, p. 277; Peters, Riicktrittsvorbehalte, pp. 84 sqq. 160 D. 19, 5, 20 pr.

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gratuitum acciperes, non ut etiam certares." Even though in this particular case a contract had probably not yet been concluded (which appears to be the reason why Ulpian granted an actio praescriptis verbis rather than the actio venditi),161 the same considerations must have prevailed if the parties had entered into a sale on approval.

(b) Construction

How was the pactum displicentiae construed by the Roman jurists? According to Ulpian, the matter was determined in favour of a resolutive condition: "[CJonstat non esse sub condicione distractam, sed resolvi emptionem sub condicione", he stated unequivocally.162 But this ruling referred only to clauses of the type "si displicuisset inemptus erit". Yet, occasionally, the parties seem to have settled on "si placuerit, erit tibi emptus"163 and this formulation hinted rather strongly at a condido suspensiva. The authors of Justinian's Institutes, in fact, understood it in this sense.164 What mattered, therefore, was "quid actum sit":165 how the parties, in each individual case, had intended their transaction to operate.166 The different legal consequences resulting from the two courses available to the parties are illustrated in a text by Mela.167 A number of mules were sold on approval. If the purchaser liked them, he had to pay the purchase price; if he did not, he owed a certain sum for every day he kept the animals. During the trial period the mules were taken away by a gang of robbers. What did the purchaser have to pay? If the pactum constituted a resolutive condition, the purchase price: emptione perfecta periculum est emptoris. If, on the other hand, the clause was of a suspensive

161 Wieacker. op. cit., note 107. p. 74; Peters, Riicktrittsvorbehalte, pp. 88 sqq.; Flume, Festschrift Kaser, p. 325; Kascr, RPr I, p. 581; contra: Misera, op. cit., note 157, pp. 549 sqq. (sale under a resolutive condition); Thomas, (1967) 35 TR 570 sq.; Kncllwolf, op. cit., note 107, pp. 92 sqq. (sale under a suspensive condition).

162D . 18, 1, 3.

163Cf. Mela/Ulp. D. 19, 5, 20, 1; Inst. Ill, 23, 4.

I M Inst. Ill, 23, 4.

165 Ulp. D. 18, 2, 2pr.

ь In the majority of cases, a pactum displicentiae was construed as a resolutive condition; fora detailed analysis of all our sources, see Misera, op. cit., note 157, pp. 539 sqq., 549 sqq., 556 sqq., 564 sq.; cf. also Knellwolf, op. cit., note 107, pp. 16 sqq. (suspensive condition), pp. 97 sqq. (resolutive condition). But see Peters, Ritcktriftsvorbehalte, pp. 101 sqq.. who argues that the classical Roman lawyers always regarded a paccum displicentiae as a resolutive condition.

167 Ulp. D. 19, 5, 20, 1: "Item apud Melam quaeritur, si mulas tibi dedero ut experiaris et, si placuissent, emeres, si displicuissent, ut in dies singulos aliquid praestarcs, deindc mulae a grassatoribus fuerint ablatae intra dies experimenti, quid essct praestandum, utrum pretium ct merces an merces tantum. et ait Mela intcresse, utrum emptio iam erat contracts an futura, ut, si facta, pretium pctatur, si futura, merces petatur; sed non expnmit de actionibus. puto autem, si quidem perfecta fuit emptio, competere ex vendito actionem, si vero nondum perfecta esset, actionem talem qualem adversus desuitorem dari." (The latter remark refers to Lab./Ulp. D. 19, 5, 20 pr. in fine: actio praescriptis verbis.) On this text, see Peters, RUcktrittsvorbehalte, pp. 107 sqq.; Flume, Festschrift Kaser, p. 325; and, in particular, Misera, op. cit., note 157, pp. 543 sqq.

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