!!Экзамен зачет 2023 год / The Law of Obligations

"Emptio venditio contrahitur cum de prctio convenerit, quamvis nondum pretium numeratum sit, ac ne arra quidem data fuent. nam quod arrae nomine datur, argumentum est emptionis et venditionis contractae", says Gaius,5 and in D. 18, 1, 35 pr. he expands: "Quod saepc arrae nomine pro emptione datur, non eo pertinct, quasi sine arra conventio nihil proficiat, set ut evidentius probari possit convenisse de pretio."6

Wherever such an earnest was given, it only provided some evidence that a contract of sale had been concluded. It did not have a constitutive effect or function, but merely played a confirmatory role (arrha confirmatoria).7 Once the contractual obligations had been discharged, the ring could be claimed back. 1fa sum of money had been given as arrha, it was set off against the purchase price.8

(b) Greek arrha

D.18, 1, 35 pr. makes it clear that the confirmation of a contract by means of an arrha was not a rare occurrence. The text also contains a pointed allusion to an alternative way of looking at arrha. This was the view prevailing in Greek law, which did not recognize consensual

contracts and where the handing over of an earnest was therefore essential for creating (contractual) liability.9 Here both parties were interested in the arrha for it was not only the buyer who was penalized by its forfeiture if he failed to pay the purchase price: it also served to secure the seller's obligation in that, if he defaulted, he not only had to return the buyer's arrha, but he also had to pay him alterum tantum, i.e. as much in addition. Arrha, in this form, "seems to have remained

the real sanction of sale in the Greek East throughout the Hellenistic period"10; a mere agreement to buy or sell, unaccompanied by arrha, could be repudiated with impunity by either of the two parties. Roman practice was clearly influenced by this Hellenistic model, but to what

extent Greek arrha was ever received into Roman law remains a matter of speculation.11 In any case, it would have made sense only at a time when consensual contracts were not yet recognized as actionable; for once the aggrieved party was able to sue on the contract, there was no longer any real need to acknowledge a system of alternative sanctions.

On the other hand, Plautus in his comedies refers to what can in

5 Gai. Ill, 139.

0 Gai. D. 18, 1, 35 pr.

7 Cf., in this sense, also § 336 I BGB.

B Ulp. D. 19, 1, 11, 6; Knutel, Contrarius consensus, pp. 37 sqq. Cf. also § 337 I BGB: "The earnest shall, in case of doubt, be credited to the performance due from the giver, or when this cannot be done, shall be returned on performance of the contract."

9Cf. esp. Pnngsheim, Sale, pp. 333 sqq.

10De Zulueta, Sale, pp. 22 sq.

1 Cf. esp. Mario Talamanca, L'arra delta compravendita in diritto greco e in diritto romarw

(1953), pp. 47 sqq.; Philippe Meylan, "Des arrhes de la vente dans Plaute", in: Melanges Henri Levy-Bmhl (1959), pp. 205 sqq.; Frezza, Garanzie, vol. I, pp. 299 sqq; Watson, Obligations, pp.46 sqq.; Geoffrey MacCormack, "A Note on Arra in Plautus", (1971) 6 The Irish Jurist 360 sqq.

Created with novaPDF Printer (www.novaPDF.com)

substance only be the Hellenistic version of arrha.12 These plays were written at a time when consensual contracts were probably already enforceable.13 Did he therefore present Greek law to his audience? But would constant allusion to a foreign legal institution have succeeded in eliciting any response (let alone a comical one) from a crowd of spectators that has been characterized as "a noisy and unruly lot"?14 Would it not, therefore, be more realistic to consider Plautus as "faithfully portraying an already romanized version of the Greek law"?15 Alternatively, can one solve the problem by referring to the "social value" of arrha:

"Even if it had no legal effects whatsoever, sellers would still want to extract substantial arra from the buyer. . . . In the mind of the man in the street, a consensual contract is that much more binding where arra has been given . . ."?16

Be that as it may, the practice of giving an arrha lived on, and even the impact of the Greek perception of this practice was only temporarily subdued.

(c) Post-classical arrha

With the decline of consensualism, arrha (re)gained its attraction. Justinian even received and incorporated Greek arrha into the Corpus Juris Civilis, but only in respect of sales effected in writing.17 Reason:

"[I]n his autem [emptionibus et venditionibus] quae scriptura conficiuntur non aliter perfectam esse emptionem et venditionem constituimus, nisi et instrumenta emptionis fuerint conscripta vcl manu propria contrahentium, vd ab alio quidem scripta, a cotitrahente autem subscripta et, si per tabellionem fiunt, nisi et completiones acceperint et fuerint partibus absoluta, donee enim aliquid ex his deest, et paenitentiae locus est et potest emptor vel venditor sine poena recedere ab emptione."1H

Whenever it was envisaged to reduce the agreement into writing, the document that was to be drawn up was regarded as the contract. Prior to its written formulation, no binding obligations existed; there was still room for reconsideration and either vendor or purchaser could withdraw from the contract with impunity. Hence the need for arrha. Its function was penal (arrha poenalis). On the other hand, however, Justinian also revived and preserved the classical (purely) consensual sale. For these contracts "quae sine scriptura consistunt", arrha still had

12Cf. Curmlio, Act V. 1. 612; Pseudolus, Act IV, Sc. VII, 1. 1183, where the seller is given the choice of delivering the object sold or returning the arrha; further, for example Rudens, Act II, Sc. VI, 1. 554 sq.; Mostellaria, Act V, Se. Il, 1. 1099.

13For the date of origin of consensual sale (3rd century) cf. Fritz Pringsheim, "L'origine" des contrats consensuels", (1954) 32 RHAlb sqq.; Alan Watson, "The Origins of Consensual Sale: A Hyphothesis", (1964) 32 TR 253; Kaser, RPr I, p. 526.

14Duckworth, The Nature of Roman Comedy (1952), p. 82.

15McAuley, (1977) 23 McGiU LJ 695.

16Watson,' Obligations, pp. 49, 51.

17On the rise in the use of writing in post-classical sales law, cf. Wulf Eckart Voss, Recht und Rhetorik in den Kaisercesetzen der Spatantike (1982), pp. 195 sqq.

18Inst. III, 23 pr.

Created with novaPDF Printer (www.novaPDF.com)

a merely evidentiary function.19 Yet it is difficult to determine whether the distinction was really that straightforward. Institutiones III, 23 pr. in fine, contains a clause ("sivc in scriptis sive sine scriptis venditio celebrata est") which cannot easily be reconciled with what is set out at the beginning of the text.

(d) Argumentum emptionis contractae or arrha poenitentialis?

C.4, 21, 17, our other major source for the Justinianic arrha, is, if

anything, even more difficult to understand. The interpretation of the sources has thus given rise to disputes which continue unabated.20 As far as the position in the ius commune is concerned, the main point of controversy has always been the function of an arrha given after the sale had already come into existence: "Venditionc perfecta, et arris datis,

emptor, seu venditor recusat implere promissa, quaestio est quid iuris?"21 Was the arrha merely argumentum emptionis et venditionis contractae (evidence that the contract had been concluded)?22 If one of the parties subsequently withdrew from the contract and did not render performance as promised, the other would then have had a claim for

damages on the contract in exactly the same way as if no arrha had been given.23 Or are we dealing here with what came to be called arrha poenitentialis ("Reugeld")'? Both parties, it was often argued, had a right to withdraw from the contract; the purchaser, if he chose to exercise this right of withdrawal, forfeited what he had given as arrha, whereas the vendor, who no longer wanted to be bound by the contract, had to return double the amount of the arrha: "[H]oc in casu ad id, quod interest, actionem non esse dandam, sed arras datas omitti,

19inst. Ill, 23 pr.

20Cf. e.g. Talamanca, op. cit., note 11, pp. 79 sqq.; Gerard Chalon-Secretan, Les arrhes de la fente sous Justinien (1954); J. A.C. Thomas, "Arra in Sale in Justinian's Law", (1956) 24 TR 253 sqq.; idem, "Arra reagitata", (І956) Butterworth's South African LR 60 sqq.; idem, "A Postscript on Arra", (1959) 10 Iura 109 sqq.; Alan Watson, "Arra in the Law of Justinian", (1959) 6 RIDA 385 sqq.; T.H. Tylor, "Writing and Arra in Sale under the Corpus Juris", (1961) 77 LQR 77 sqq.; A.M. Honore, "Arra as You Were", (1961) 77 LQR 172 sqq.; Mario Talamanca, "Osservazioni sull'arra nel dirilto Giustinianeo", in: Melanges Philippe Meylan, vol. I, pp. 325 sqq.; Joseph M. Thomson, "Arra in Sale In Justinian's Law", (1970) 5 The Irish jurist 179 sqq.; M.L. Marasinghe, "Arra —Not in Dispute", (1973) 20 RIDA 349 sqq.; Henryk Kupiszewski, "Quelques remarques sur les vocabula ANTIXPHXI2, APPA, IIAPAONPHA dans le digeste", (1974) ISJJP 235 sqq.

21Fachinaeus, Controversiae iuris. Lib. II, Cap. XXVIII.

22Cf. e.g. Pothier, Traite du contrat du vente, nn. 508 sq.

23Except that the value forfeited might have counted towards damages. This was disputed, too. Cf., today, § 338 BGB: "If the performance due from the giver becomes impossible because of a circumstance for which he is responsible, or if the rescission of the contract is due to his fault, the holder of the earnest is entitled to retain it. If the holder of the earnest demands compensation for nonperformance, the earnest shall, in case of doubt, be credited, or if this cannot be done, it shall be returned upon payment of the compensation." The earnest, in this instance, represents a minimum amount of liquidated damages; the function of the earnest is that of a penalty clause.

Created with novaPDF Printer (www.novaPDF.com)

aut duplum reddi oportere."24 According to this view, arrha weakened rather than strengthened the contract. The fathers of the BGB favoured the former solution. Of course, the will of the parties is always of paramount importance, and it is therefore primarily up to them to determine the effects of arrha in detail.25 However, in case of doubt, it is not to be regarded as arrha poenitentialis; it is deemed to be (merely) proof of the conclusion of the contract.26

3. The essentialia negotii

For a valid sale to come into existence, the parties had to agree on the object of the sale and the price. They could provide further details of their transaction: either of them could reserve the right to rescind the contract under certain circumstances, the purchaser could ask the vendor to guarantee certain qualities of the thing sold, the parties could specify the place of performance, etc. But these were merely accidentalia negotii, special arrangements of the parties, which did not determine the nature of the contract. As long as object and price had been agreed upon, the contract could be classified as sale; at least with regard to these essential elements, the contract had to be the work of the parties and an expression of their private autonomy. Exact determination of reciprocal rights and duties and of the effects and consequences of the transaction, on the other hand, was not necessarily the business of the parties; such regulations normally connected with or "naturally" flowing from any contract of sale (hence: "naturalia negotii") were (and still are) usually provided by the law.27 We shall deal first with the essentialia and then with the naturalia negotii.

II. THE POSSIBLE OBJECTS OF A CONTRACT OF SALE

1.Demarcating the areas of emptio venditio and locatio conductio

Almost anything could be the object of a contract of sale,28 whether corporeal or incorporeal: chattels (especially slaves) or land, claims against third parties or inheritances, servitudes, praedial or personal, etc. If, however, the benefit of the seller's services or the use of a thing

24 Cf. e.g. Fachinaeus, Joe. cit.; cf. also e.g. Perezius, Praeiectiones, Lib. IV, Tit. XXXVIII, 20.

"5 For the modern version of arrha poenitentialis, cf. § 359 BGB. f § 336 BGB.

"7 The distinction between essentialia, naturalia and accidentialia negotii was developed in the Middle Ages under the influence of Aristotelian logic. Cf. Helmut Coing, "A Typical Development in the Roman Law of Sales", in; Gesammelte Aufsatze zu Rechtsgeschichte, Rechtsphilosophie und Zivilrecht, vol. I (1982), pp. 73 sq.; idem, "Zum Einfluss der Philosophie des Aristoteles auf die Entwicklung des romischen Rechts", (1952) 69 ZSS 32 sq.

28 Paul. D. 18, 1, 34, 1: "Omnium rerum, quas quis habere vel possidere vel persequi potest, venditio reete fit."

Created with novaPDF Printer (www.novaPDF.com)

was the subject matter of the transaction, the contract was not sale but hire (locatio conductio). Wherever a legal system distinguishes between different types of contracts and wherever the naturalia negotii vary according to how a specific transaction is classified, intricate problems of where to draw the line arise. What, for instance, if I engage a goldsmith to make me a ring? Is it sale of the ring or hire of the goldsmith's services?

"Item quaeritur, si cum aurificc mihi convenerit, ut is ex auro suo certi ponderis certaeque formae anulos mihi faceret, ct acciperet verbi gratia denarios CC, utrum emptio et venditio an locatio ct conductio contrahatur. Cassius ait materiae quidem emptionem venditionemque contrahi, operarum autem locationem et conductionem. scd plerisque placuit emptionem et venditionem contrahi. atqui, si meum aurum ei dedero, mercede pro opera constituta, convenit locationem conductionem contrahi."29

The question, as we see, was controversial. Cassius even argued that we are dealing here with a mixed type of transaction. Eventually the opinion came to prevail that the contract was one of sale, provided the vendor (maker) supplied the material.30 The opposite was the case where the purchaser had given the goldsmith the gold; also in building contracts, for instance, where the "purchaser" had asked the "vendor" to build a house on his (the "purchaser's") ground.31 These are subtle distinctions. In the latter two instances the hire of the services clearly dominates the transactions, whereas the transfer of ownership from the maker/builder to the customer, which might point in the direction of sale, is, at best, only incidental.32 But to apply the rules of sale wherever the contractor is bound to produce the work from materials provided by himself (except in the "superfides-solo-cedit" situations), seems not always to be entirely satisfactory. Where the value of those materials, as compared with that of the work, is quite insignificant, it is hardly apposite to speak of a contract of sale.33 Or take the case where the contractor produces a non-fungible object for a specific customer: it may well be argued that the rules relating to the contract for work are more suitable in this instance, particularly in view of the fact that it will be difficult for the customer to sell this object elsewhere.34

■ I n the case of the building contract, ow ne rship passe d to the "p urch ase r" on ac coun t

"If the contractor binds himself to produce the work from material provided by him, he shall deliver the thing produced to the customer and convey ownership in the thing. The

Created with novaPDF Printer (www.novaPDF.com)

Similar problems of demarcating the respective areas of emptio venditio and locatio conductio could arise in other cases, another famous example being the one discussed in Gaius III, 146:

"Item, si gladiatores ea lege tibi tradidcrim, ut in singulos qui integri exierint pro sudore denarii XX mihi darentur, in cos vero singulos qui occisi aut debilitati fuerint denarii mille, quaeritur utrum emptio ec venditio an locatio et conductio contrahatur."

Somebody wants to organize a gladiatorial show. For each man who emerges unscathed, he agrees to pay 20 denarii in return for the slave's exertions ("his sweat"); for each gladiator who is killed or maimed, 1 000 denarii. Sale or hire? According to the prevailing opinion, it could be either, depending on what happened to each particular slave. Whomever the organizer of the games was able to return unscathed to the gladiators' masters (lanistae) was to be considered as having been hired: with respect to those killed or disabled, the contract was one of sale. Thus the nature of the transaction could be determined only once the outcome of the gladiatorial contest was known. Both sale and hire were dependent upon the fulfilment or non-fulfilment of a condition; until then the transaction was pending. This solution is hardly convenient, for it does not provide a remedy for the games-giver if the lanista fails to supply the gladiatorial games.35

2.Generic sales

(a)The Roman rule and its origin

The most interesting and, from a modern point of view, even startling exception to the range of possible objects of a contract of sale was provided by the fact that mere generic sales (or "sales by description") recognized in Roman law. Things which are normally counted, measured or weighed and are therefore usually defined by reference to their genus could, of course, be sold, but only if they were either specified ("these two amphorae of Tusculan country wine") or if a whole (specific) stock of such non-specific goods was sold ("all the wine in my cellar").36 Even the sale of generic goods from an identified source, i.e. from a specified mass or stock, was possible ("ten amphorae of wine from my cellar").37 But the sale of, say, "twenty amphorae of white wine", or of "a slave", that is, the pure generic emptio venditio,

provisions applicable to sale apply to such a contract; if a non-fungible thing is to be produced, the provisions relating to contract for work, with the exception of §§ . . ., take the place of §§. . . . "

35 De Zulueta, Gaius II, p. 174. Cf. also the detailed analysis of Gai. Ill, 146 by A.M.

Prichard, in: Studies in the Roman Law of Sale in memory of Francis de Zulueta (1959), pp. 1 sqq.;

Antonio Guarino, "II leasing dei gladiatori", (1985) 13 Index 461 sqq. i6 Cf. e.g. Gai. D. 18, 1, 35, 5.

37 Gai. D. 18, 1, 35, 7; Paul. D. 18, 6, 5 (second part).

Created with novaPDF Printer (www.novaPDF.com)

was unknown to Roman law,38 This raises two questions: how could long-distance trading, especially among the big grain and wine merchants, be carried out without it? And secondly: what was the reason for this peculiarly restrictive state of affairs?

The answer to the latter question lies in the historical evolution of sale.39 In all the ancient laws, sale was essentially a market transaction. It was concluded inter praesentes, and conclusion of the contract and execution of the mutual performances (i.e. the transfer of the object of the sale and payment of the purchase price) coincided. Thus, in early Roman law, sale was tantamount to an executed sale or cash sale. This is obvious regarding the formal act of mancipatio, in the course of which originally, in order to effect the sale, the price was weighed out and handed over in exchange for the acquisition of a res mancipi. But the informal sale, too, was first of all cash sale. In the course of time this strict and simple system of transfer against cash was gradually relaxed, first in that the purchase price could be credited, then also by allowing the delivery of the object sold to be separated from the conclusion of the sale. Thus, by the time of the later Roman Republic, the formless emptio venditio had become a fully executory contract.40 It no longer contained all the elements necessary for the transfer of ownership of the object sold in itself; nor did it require payment of the purchase price for its validity. The contract merely gave rise to the obligations on the part of the vendor to perform whatever acts were necessary to transfer ownership, on the part of the purchaser to effect the payment. The contract of sale in this sense was conceived as a uniform transaction with an all-round range of application: it could be concluded as a cash or credit transaction, among Roman citizens and with peregrini, in respect of res mancipi and res nee mancipi. Mancipatio eventually degenerated into a mode of transfer of res mancipi; though retaining

38 We find it in none of our sources. Cf. Emil Seckel, Ernst Levy, "Die Gefahrtragung beim Kauf im klassischen romischen Recht", (1927) 47 ZSS 122 sqq.; Buckland/McNair, p. 282; De Zulueta, Sale, p. 16; Arangio-Ruiz, Compravendita, pp. 122 sqq. Contra: Franz Haymann, "Haben die Romen den Gattungskauf gekannt?", (1928-29) 79 Jhjb 95 sqq.; Honscli/Mayer-Maly/Selb, pp. 305 sqq.

39 For wh at follo ws, se e D e Zulue t a, S a le , pp. 2 sqq. ; Ar an gi o-R uiz , Co m p ra ve nd ita , pp. 4 sqq.; Kaser, RPr\, pp. 545 sq. Cf. alsojoseph Georg Wolf, "Barkaufund Haftung", (1977) 45 TR 12 sq.

40 "From the beginning of the second century B.c. the pulse of trade began to beat too fast for the leisurely methods which had suited the cautious Roman peasant well enough": De Zulueta, Sale, p. 5. Hypotheses on the origin of consensual sale and of the origins of the bonae fidei iudicia in general abound; sec, for instance, Philippe Meylan, "Le role de 1a bona fides dans le passage de la vente au comptant a ia vente consensuelle a Rome", in: Aequitas und Bona Fides, Festgabefiir August Simonius (1955), p. 247 sqq. ; Filippo Cancelli, L'origine del contratto consensuelle di compravendita nel diritto romano (1963), passim; Franz Wieacker, "Zum Ursprung der bonae fidei iudicia", (1963) 80 ZSS 1 sqq. (cf. also idem, RR , pp. 441 sqq., 453 sq., 457 sq.); Alan Watson, "The Origins of Consensual Sale: A Hypothesis", (1964) 32 TR 245 sqq.; Luigi Labruna, "Plauto, Manilio, Catone: Premesse alio studio dell' 'emptio' consensuale", (1968) 14 Labeo 24 sqq.; Jolowicz/Nicholas, pp. 288 sqq.; Diosdi, pp. 44 sqq. The most recent contribution is Watson, Evolution, pp. 12 sqq.

Created with novaPDF Printer (www.novaPDF.com)

many of its archaic features,41 it no longer functioned in itself as (the) sale, but was regarded as a way of discharging the vendor's obligation arising from the underlying contract. It is an intriguing feature of the Roman law of sale, though, that the old cash sale ideas lingered on and that the fully developed, executory emptio venditio always retained certain features of the ancient executed type of transaction. One of these features was the fact that the sale of generic goods never came to be accommodated within the framework of emptio venditio by the Roman lawyers. As a matter of course, every sale in the olden days was the sale of one or a number of specific things; for in a system where the parties get together on the marketplace and exchange their performances on the spot, it is evident that the objects of the sale are those specific items which the vendor has actually brought along. A generic sale, under these circumstances, is a logical impossibility. The lawyers, however, retained what had once been a natural restriction, even at a time when it had become possible to envisage and conceptualize this type of transaction.

(b) Generic sale and sale of specific goods

Two factors may well have contributed towards this conservative attitude. On the one hand, the cash sale remained by far the most frequent type of sale and continued to dominate particularly the common transactions of everyday life. On the other hand (and this is, at the same time, the answer to the first of the above-mentioned questions), there does not seem to have been a great practical need for the purely generic emptio venditio. Big business (and whoever else might have been involved in such transactions) could (and actually did) avail itself of two stipulations in order to achieve the same practical result.42 That was convenient enough and it also allowed the parties to stipulate, in the same breath, all the terms they deemed necessary in the individual circumstances. In any event, this procedure was hardly more cumbersome for the parties than adapting, by way of special pacta, the rules relating to the consensual emptio venditio to suit the envisaged generic sale. This would have been necessary, however, seeing that these rules were geared very much towards the (non-generic) sale of specific goods.43 The latter observation, incidentally, is hardly less valid today than it was in Roman law. The generic sale has, of course, long since been recognized, but it has always been overshadowed by the sale of specific goods. Even modern legislators have given pride of place to

41The transferee still had to assert that he had bought the object ("Hunc ego hominem ex iure Quintium meum esse aio isque mihi emptus esto hoc aere aeneaque libra"), which was as fictitious as the "price" paid, a copper coin which he handed over to the transferor after he had used it to knock at the scales which the libripens held.

42Seckel/Levy, (1927) 47 ZSS 137 sqq.; Buckland/McNair, pp. 282 sq.

43For instance, as far as liability for latent defects is concerned; cf. e.g. Seckel/Levy, (1927) 47 ZSS 136 sq. and, today, § 480 BGB, read together with § 243 BGB.

Created with novaPDF Printer (www.novaPDF.com)

the sale of specific goods and have devoted careful and loving consideration to all the details and eventualities thereof. The sale of generic goods tends to be regarded traditionally as a deviation from the norm that can be dealt with by way of a mere appendix or some special provisions thrown in here and there. In modern life, however, it dominates to such an extent that it may well be asked whether the law should not also reverse its priorities.44 In so far as this has not yet been achieved, we are still caught up in the thinking patterns of lost ages, where producer and consumer met, without any intermediaries, in a shop or marketplace, in order to effect their transactions. Ultimately, it is the cash sale of ancient Rome that still lurks in the background.

(c) The double function of the contract of sale

Another consideration may be added at this stage. Sale, as we have said, was an obligatory (or executory) act. It gave rise to certain obligations, which still had to be discharged, particularly the obligation to transfer the object sold. But at the same time the contract of sale itself contributed to the execution of this very obligation; it contained a "real" (as opposed to merely obligatory) element. This seemingly paradoxical situation can best be explained by a comparison with the position in modern German law. In § 433 I BGB we read that "by the contract of sale the seller of a thing is bound to deliver the thing to the purchaser and to transfer ownership of the thing". As far as this transfer of ownership is concerned, we have to refer to § 929 BGB. "For the transfer of ownership of a movable thing," this rule provides, "it is necessary that the owner of the thing deliver it to the acquirer and that both agree that the ownership be transferred." All in all, therefore, - three acts are necessary to conclude and carry out the transaction. There is, first of all, the (purely obligatory) contract of sale. Then there is traditio, the act of physical transfer of the object sold. But over and above that, there is a further contract accompanying the delivery: transferor and transferee have to agree on the transfer of ownership. This second contract is conceptually detached from and unconnected to the contract of sale (the principle of separation); in German law, furthermore, its validity has to be determined in abstracto, i.e. independent of whether the underlying contract of sale is void or valid {or whether, indeed, such an underlying contract has even been concluded—the principle of abstraction).45 It has been maintained that for the transfer of ownership in Roman law, apart from traditio, an

44 Cf. e.g. Rabet, Warenkauf, vol. I. p. 65.

4r> Cf. e.g. Zweigert/Kotz, Einfuhrung in die Rechtsvergleichung (1st ed.(!), 1971), vol. I, pp. 214 sqq.; Gerhard Kegel, "Verpflichtung und Verfugung", in: Festschrift fur F.A. Mann (1977), pp. 57 sqq.; Reinhard Zimmermann, "Sittenwidrigkeit und Abstraktion", (1985) Juristische Rundschau 48 sqq. The principle of abstraction goes back to Friedrich Carl von Savigny; cf. his Obligationenrecht, vol. II, pp. 254 sqq. and Wilhelm Felgentraeger, Friedrich Carl v, Savignys Einfluss auf die Obereignungslehre (1927).

Created with novaPDF Printer (www.novaPDF.com)

agreement of this kind, separate from the contract of sale, was required — but (unlike in German law) not an abstract one: a causa traditionis in the sense of an agreement on the legal purpose of transferring ownership, a special legal act determining why traditio is actually made: venditionis causa, donationis causa, mutui causa, etc.46 Today, however, another view prevails.47 It has been shown that transfer of ownership depended on two elements only: iusta causa traditionis and traditio. Gaius II 19, 20, for instance, states quite clearly:

"Nam res nec mancipi ipsa traditione pleno iure alterius fiunt, si modo corporales sunt et ob id recipiunt traditionem. Itaquc si tibi vestum vcl auruni vel argen turn tradidero sive ex venditionis causa sive ex donationis sive quavis alia ex causa, statim tua fit ea res. si modo ego eius dominus sim."

The contract of sale and traditio: no further acts were necessary. The contract of sale, then, had a double function: it was the obligatory act and iusta causa traditionis — iusta causa traditionis in the sense that it implicitly contained the will of the parties to transfer ownership on the basis of a contract of sale; and it was this common purpose that formed the basis of traditio and justified the transfer of ownership. If that was so, it becomes clear (and that is why we have made the point in the present context) that it was not merely their innate conservatism which prevented the Roman lawyers from recognizing generic sales. The very structure of the Roman emptio venditio did not lend itself to accommodating this type of transaction.48 If the contract of sale served as iusta causa traditionis and thus contained everything that was necessary to transfer ownership except traditio, it could only refer to a specific thing; for, whilst it is perfectly possible to agree to sell goods described only by reference to their genus, ownership can logically be transferred with regard to only one or the other specific object.

3. The sale of non-existing objects

If the potential objects of a contract of sale were multifarious, a very basic requirement for its validity was that such object did in fact exist: "Nee emptio nee venditio sine re quae veneat potest intellegi."49 Thus, if the slave who was to be the object of the sale had died before the contract was concluded, if a house had burnt down or a vessel had been smashed before it was sold, the contract was void. It was impossible for the vendor, under these circumstances, to fulfil what he had promised:

46Cf. e.g. Fritz Schulz, (1932) 52 ZSS 544 sqq.

47Max Kaser,"Zur 'iusta causa traditionis'", (1961) 64 BIDR 61 sqq.; Gunther Jahr, "Zur iusta causa tradionis", (1963) 80 ZSS 141 sqq.; Uwe Wesel, "Zur dinglichen Wirkung der Rucktrittsvorbehalte des romischen Kaufs", (1968) 85 ZSS 100 sqq.; Robin Evans-Jones, Geoffrey MacCormack, "Iusta causa traditionis", in: New Perspectives in the Roman Law of Property, Essays for Barry Nicholas (1989), pp. 99 sqq.

Sec, for this argument, Frank Peters, "Die Verschaffung des Eigentums durch den

Verkaufer", (1979) 96 ZSS 189. 44 Pomp. D. 18, 1, 8 pr.

Created with novaPDF Printer (www.novaPDF.com)