Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA
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defect was patent or known to the buyer.1 This comes near to our law (subject to the difference that in Roman law a breach of contract, however fundamental, did not discharge the contract, though it gave the other party a defence if he was sued and a claim for refund), but the Sale of Goods Act embodies what looks like an unreasonable distinction. Apart from what may be called patent defects, if the sale is by sample the thing must be of merchantable quality, but if the sale is by description alone this rule applies only when the vendor is a dealer in such things, whether the manufacturer or not. That seems to be the effect of sections 14(2) and 15. There does not appear to be in the Roman texts any rule corresponding to section 14(1), which tells us (it is not a new doctrine) that 'where the buyer. . .
makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment', the things being such as it is in the course df the seller's business to supply, there is an implied warranty that the things are reasonably fit for that purpose. To make that rule workable a limitation is necessary which is not stated in the section, though it seems to be implied in the cases, namely that the 'particular purpose* indicated must either be one to which such things are normally put, that is, their general purpose, or it must be a special purpose disclosed to the seller expressly or by implication. In that sense the Roman law gives much the same result as to the first case and probably as to the second.
In one respect our law seems to be more reasonable. In Roman law, if land sold proved to be subject to a servitude, an easement or the like, which was not disclosed, this gave the buyer no claim, unless the vendor knew of its existence, in which case his silence was dolus> or warranted that there was none, in which case there was a breach of contract.2
1D. 19. 1. 6. 4; h.t. 11. 3; h.t. 7; h.t. 27; h.t. 44. 1.
2D. 18. 1. 59,66.
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Of course such a thing is not likely to happen apart from fraud, but in our law it seems that when the incumbrance, e.g. a right of way, is latent, but not when it is patent, the buyer would have his remedy.1 The Roman law is usually explained as resulting from the view that a servitude is not so much a burden on the land as a quality or characteristic of it, like unusual fertility, or liability to be flooded, of which the buyer must take his chance. However this may be, the rule can hardly be called satisfactory. It persisted in the Gemeines Recht, but it has disappeared from the Btirgerliches Gesetzbuch. And the French Code Civil gives a remedy where the servitude was not apparent, provided it was important enough to have determined the buyer against the purchase.* Indeed both French and German law impose liability for any defects seriously affecting value, except such as were apparent, and subject to contract. But it is curious to note that both these systems have modified this in respect of animals, i.e. precisely in the field in which the Roman law itself was most severe.3
We have already noted that, in Roman law, the contract did not transfer ownership—a separate act of conveyance was needed and was no doubt often contemporaneous.4 Notwithstanding this the Roman law of the texts places the risk of accidental destruction on the buyer even before delivery, an exception to the general rule—resperit domino. This looks so odd that the view has been maintained that the rule is not really Roman but was adopted only in the later Empire, having been borrowed from Greek practice, in which it was perfectly logical, since there the contract
1 |
Tandle v. Sutton, [1922] 2 Ch. 199. |
2 Art. 1638. |
3 |
For France, see, e.g., the law of August 2, 1884. For Germany, see |
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Schuster, Principles of German Civil Law, p. 213. |
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4 |
The French law had abandoned the Roman doctrine long before the |
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enactment of the Code Civil, but it was preserved in the German Gemeines Recht, and has been maintained even in the modern Burgerliches Gesetzbuch.
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and the conveyance were the same thing: there was no consensual contract of sale, and the contract was completed only by delivery. This opinion is to say the least extremely doubtful; the better view is that it is ancient, but this is not the place in which to speculate on its origin. Whatever this may be, the rule survived because, it seems, it was commercially convenient.1 French law adopted the rule but made it logical, as it is in our law, by making the contract pass the property, and this is the law of the Code Civil. The Gemeines Recht preserved the Roman rules unaltered, but the new Biirgerliches Gesetzbuch has reached a solution the opposite of that in France and England, but equally logical. It preserves the Roman rule that the contract does not pass the property but makes the risk pass only on delivery.2 It would be interesting to know which was thought by commercial men the more convenient rule.
The rule that the risk passed to the buyer even before delivery, though ownership did not, was less severe than it looks. It did not apply so long as the sale was subject to a condition or so long as the goods were not in a deliverable state: so long as there was anything to be done to the goods, such as severance from the mass or even measurement of the mass sold to determine the price, the risk was not on the buyer and he would not have to pay the price if the goods were destroyed without his fault. The sale was perfect^ and the risk passed, only 'si id quod venierit appareat quid, quale, quantum sit, sit et pretium et pure venit'.3 This is substantially the same as the effect of sections 18 and 20 of the Sale of Goods Act, that is to say the circumstances in which the risk passes in Roman law
1Buckland, Text-book, pp. 486 sq. and references; Lawson, 65 L.Q.R. pp. 361-364.
2Schuster, Principles ofGerman Civil Law, pp. 209, 215. However, the effect of the postponement is mitigated by the possibility of constructive delivery.
3D. 18. 1. 35. 5 and 7; D. 18. 6. 8.pr.
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are much the same as those in which the property passes, and with it the risk, under our law. The practical difference is not very great, but the fact that in Rome the risk passes without the property is notable. As we have seen, in French law the Roman rule as to risk is maintained, but property passes much as with us, so that it is only in the rare case of a postponement of transfer of property, though the contract is perfectus, that the Roman anomaly can arise.1
The rule that the contract of sale did not transfer ownership in Roman law, while with us it commonly does, under the rules already stated, gives a distinction, which is one of principle rather than of practical effect. It also illustrates the fact that in contrasting two systems much depends on the stages of historical development selected for the contrast. The Roman rule calling for separate conveyance existed so far back as the history can be traced. That cannot be said of our rule. There is evidence that up to Bracton's time and later, what mattered in determining where property lay was seisin, a term which then applied equally to chattels and to land. 'That the ownership of the purchased goods did not pass to the buyer until they were delivered to him seems plain.'2 Fry and Bowen LJJ. in Cochrane v. Moore3 also point out how the rule stood in early law and attribute the change to the introduction of the action of assumpsit, which gave much increased importance to merely consensual contracts. In consequence of the increased importance of consent in contract the questions whether and when property passed came to depend, in cases where there was a quid pro quo> on the consent and intent of the parties, with the result that a new exception was made to the necessity of delivery.4 That the same increased importance of consent did not produce the same effect in
1 |
Amos and Walton, Introduction to French Law, 2nd ed. pp. 357, 358. |
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2 |
P. and M. ii. pp. 209-210. |
3 (1890), 25 Q.B.D. 57, 65. |
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Ibid, at p. 70. |
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Rome is not surprising in view of the clearness with which they distinguished iura in rem and in personam.
It therefore appears that the Romans and the founders of our common law were at one in refusing to treat the contract as alienatory per se and in requiring delivery to pass the property. In the Roman case the reason is probably that sale was essentially a market transaction and that it accorded with common sense that so important a matter as the transfer of the ownership should be accompanied by, and depend upon, a visible act such as handing over. In our case the reason was probably the same, but the rule is doubtless reinforced by the fact that in our medieval law possession was very much more important than ownership and it was difficult to conceive of ownership unaccompanied by possession. * Indeed we may be left doubting whether there was any right in movable goods that deserved the name of ownership.'x It is this fact which, as already mentioned, probably explains why it has been impossible to say
—at any rate until recently—that the modern contract of sale of goods imposes an obligation to transfer ownership.
As the Romans made no great distinction between land and moveables and the distinction between res mancipi and nee mancipi, obsolete under Justinian, had no importance in the law of contract, the rules which have been compared with our law of sale of goods are those of sale generally. But there is one point in which a distinction seems material. Both systems agree in holding that, apart from fraud, the sale is void if the thing has ceased to exist before the agreement was made. Land does not, in these latitudes, commonly cease to exist, as goods may, but its characteristics may completely alter in a way which does not commonly happen with goods. One who bought a house, as with us, bought land with a house on it. One who bought an olive grove bought the land with what was on it. The burning down of the house or the grove does not really destroy
1 P. and M. ii. p. 153.
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what was sold, but it was in fact treated as destruction of the thing.1 If this happened before the agreement was made, this was void, as there can be no sale without a res vendita? Our law attains a similar result by a different route. When the house has been really destroyed, not merely damaged, before the date of the contract and without the knowledge of the parties, there is no contract, by reason of the common fundamental mistake.3 Roman law might have reached the same result on the ground of fundamental error, but the texts cited go on to discuss the effect of partial destruction and of knowledge in either party or both, in a way which is somewhat irrational (the conclusions can hardly be classical), but which suggests that this is not the actual point of view. The rule that if not more than half the house is burnt the contract stands, subject to allowance for lessened value, seems absurd and is modified by the Code Civil into a rule that in case of partial destruction the vendee may choose either to repudiate the contract or to maintain it subject to compensation.4 The Courts however have limited the right of repudiation to cases in which the destruction has been such that the party would not have bought if he had known of it.
EXCURSUS:* THE PASSING OF PROPERTY
AND RISK IN SALE
This topic can now, I believe, be handled more clearly than in the text; and it seems that the English, and still more the American, law approaches with extraordinary closeness to the Roman law.6 Both the Sale of Goods Act and the Uniform Sales Act contain headings7 which make
1 D . 18. 1. 57, 58. |
* D . 18. 1. 15. pr. |
3 Hitchcockv. biddings (ISIJ), |
4. Price, 135, 141; Williams, Vendor and |
Purchaser, 4th ed. pp. 771, 772, which is in accord with general principles;
Scott v. Cou/son, [1903] 1 Ch. 453; 2 Ch. 249. |
4 Art. 1601. |
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By Professor Lawson. |
6 See 65 L.Q.R. pp. 352-372. |
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Before S.G.A. sect. 16 and before U.S.A. sect. 17. |
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it clear that mere agreement to buy and sell the goods transfers the ownership only as between the parties and, although the point is not specifically taken up in the operative words of the Acts, the effect of the transfer is seriously cut down by later sections,1 which are expressed to deal with transfer of title. Thus under both Acts a seller who remains in possession2 of the goods after sale has full power to pass them outright or by way of pledge to a bonafide holder for value who has no notice of the sale, with the result that in this situation they take the same view as Roman law of the case where a seller sells the same thing successively to two bona fide purchasers. The first purchaser to acquire possession acquires the title.
Thus the mere fact that the property passes with the contract does not necessarily make it pass as against third parties. This rule was accepted at common law in Massachusetts as early as 18 21.3 It has been accepted in England only by a fairly long process of legislationA
French law, which also has long made the property pass with the contract, has come to the same conclusion on this point, but it has done so by applying one of its most characteristic doctrines, the overriding rule that any possessor of goods, with very few exceptions, can give a good title to a bonafide purchaser for value. It is important to note that neither English nor American law has any such general doctrine, and in neither law has any far-reaching application been given to the doctrine of estoppel. In fact it looks as though both have made inroads on the doctrine that the property passes with the contract only to the extent of restoring the Roman solutions.
The question arises whether the passing of property as between the parties has any other effect than to pass the risk. At first sight it would seem that the buyer could
1S.G.A., sects. 21-26; U.S.A. sects. 23-40.
2The English courts have confined this to possession as a seller and not as a bailee for the buyer: Eastern Distributors Ltd. v. Goldring [1957] 2 Q.B.
600. |
* Lanfearv. Sumner (1821), 17 Mass. n o . |
4 |
See the Factors Acts, 1823, 1825, 1842, 1889. |
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claim the property in the goods as against the seller instead of merely bringing an action for damages for non-delivery. That is undoubtedly true where he has paid the price, but he is really in no better position than if he merely sued for specific performance of the contract. For if he sues in detinue or trover he will have to tender the price and it will be in the judge's discretion whether to order specific delivery or not: he will exercise his discretion in precisely the same way as if the action were one for specific performance. Moreover, although the property has passed even if he has not been paid, the seller has a lien for the price, even against a sub-purchaser who has paid the price to the original buyer. Indeed the only serious question is whether the buyer will be preferred to the seller's creditors if the goods are still in the seller's hands when he becomes insolvent. As owner, the buyer would certainly seem to be in the better position. But the balance is redressed to a considerable extent by the doctrine of reputed ownership, in accordance with which a trustee in bankruptcy is entitled to retain goods which the buyer has allowed the seller to retain, and which have been used for the seller's trade or business.1 Doubtless there are occasions when this doctrine does not operate—the most serious exception is where a company is wound up—and to that extent the buyer who has not taken possession of his goods may be in a better position than he would have been at Roman law. But it looks as though on the whole there would be little change if we substituted Roman for English law.
The rule that the risk passes with the contract has really nothing to do with the passing of property. It is a rule of pure obligation, and merely says that if the goods have deteriorated or have been destroyed without the seller's fault between sale and delivery, the buyer will still have to pay the price in full. However, it seems that it is habitually associated with the passing of property. Not only do French, English and American law associate them, but
1 Bankruptcy Act, 1914, sect. 38.
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the Roman classical jurists themselves noted that their rule was an exception to the general principle that the risk lies upon the owner. No explanation hitherto put forward for the Roman rule has won universal acceptance, but I suggest that just as the passing of the risk is regarded in English and American law as a natural consequence of the passing of property as between the parties, so also in Roman law the ordinary buyer and seller may well have thought that the property passed as between them with the contract. However, Roman law was extremely intolerant of such half-way houses as a relative passing of property. Either the property passed, as against all the world, or it did not pass at'all; and not only were the jurists able to express risk in terms of pure obligation, but it accorded excellently with their habits of thought, and with what they regarded as the claims of justice and convenience, that they should insist on an actual conveyance for the passing of property.
5. LEASE OF LAND AND HOUSES: LETTING OUT
OF CONTRACTS AND SERVICES
The contract of hire also presented a number of somewhat remarkable differences. In Roman law the lessor of a house guaranteed that there should be a house, not in the sense that he was responsible if the house ceased to exist, but that he could claim no rent in that event. In the same sense the lessor of land guaranteed the exploitability of the land: he could claim no rent for a period in which the land was unavailable, through no fault of the lessee, and he must refund any rent already received in respect of such a period. And a farm tenant could claim abatement, as of right, if a season proved disastrous.1 With us there is no such right to abatement. A landlord does not guarantee the existence of the house in any way, and, if it is destroyed by accidental fire the tenant, unless the lease provided otherwise, must still go on paying rent. This remarkable difference seems
1 For references see Buckland, Text-book, p. 501.
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to express the fact that our law contemplates the parties to such a contract as dealing on level terms so that they can protect themselves by express stipulations, while Roman conditions were such that the capitalist who owned the insula or the estate had, and was recognised by law as having, very much the whip hand.1 As a consequence their common law made the adjustments which in our system are in the first instance left to the parties and only when the inequality has become obvious have been effected by express legislation, by Housing Acts,2 Rent Restriction Acts, Agricultural Holdings Acts and so forth.
There were, however, some exorbitant-looking rules under Justinian which cannot be reconciled with principle. Thus a text in the Code^ allows the landlord to eject the tenant holding for a term if he wants the house himself, or if it needs repair, suffering no penalty but loss of rent. This last rule existed equally in classical law, but the first is surprising. The enactment is ascribed to Caracalla, but this provision is in an appended nisi clause, and though it is sometimes explained away as expressing only a local custom, it seems more probable that it is a hasty Byzantine addition.
Hire, like sale, is pure contract: it gives no ius in rem. The hirer of land or a house had no possessory right, any more than the hirer of a moveable had. There was therefore nothing corresponding to the action of ejectment against third parties. If a third party interfered with the
1 But some place must doubtless be found for the fact that the actions on locatio conductio were bonae fidei.
2 The Housing of the Working Classes Act, 1885, sect. 12 (now repealed), implied in every contract of letting of a house to the 'working classes' a condition that it should at the commencement of the holding be 'reasonably fit for human habitation', and this condition has been applied by later legislation, now the Housing Act, 1957, sect. 6, to the letting, at certain low rents, of houses generally, and has been extended to cover not merely the commencement but the whole duration of the tenancy. Furthermore the Housing Act, 1961, sects. 32, 33 requires the lessor of a dwelling-house for less than seven years to keep the structure and exterior in repair.
3 c . 4 . 6 5 . 3 .