!!Экзамен зачет 2023 год / The Law of Obligations

he could not make delivery and provide undisturbed possession and enjoyment of something that had ceased to exist. "Impossibilium nulla obligatio est" was the fundamental principle governing these situations.50 By the same token, a sale was not regarded as invalid merely because the vendor was not owner of what he sold: "Rem alienam distrahere quern posse nulla dubitatio est: nam emptio est et venditio."51 However, as the text continues, ". . . res emptori auferri potest". On the consequences and implications of such an act of eviction, more anon.

4.The sale of res extra commercium or of a free man

(a)Res publicae, res divini iuris and the liber homo

Furthermore, there were certain categories of things, in which dealings were not factually (objectively) impossible, but prohibited by law. These were liberi homines — subjects rather than objects of rights— things in usu publico (such as public roads, fora, basilicae, stadia, theatra, cloacae or rivers)52 and res divini iuris: res sacrae, dedicated to the gods above (such as temples or sacred groves), res religiosae, dedicated to the gods below (tombs, burial grounds, etc.) and res sanctae, places specifically under divine protection, such as the walls and gates of a city.53 Res publicae and res divini iuris were taken to be extra commercium; they could not be the object of any commercial legal transaction between private individuals. Originally, therefore, any contract of sale involving either a free man or a res extra commercium was void.

(b) The availability of the actio empti

Soon, however, this solution was felt to be unsatisfactory in situations where the purchaser (but not the vendor) had been unaware of the true status of the thing. Cases of this nature were, of course, very unlikely to crop up with regard to res publicae and, to a lesser extent, res divini iuris:

Antonio Carcate rra, "I nc gozi giuridici sulla cosa propria ", ( 1940) 18 Annali Ba ri 1 sqq.; Giannetto Longo, "N e gozi giuridici colle gati e ne gozi su cosa propria", ( 1979) 45 SD MI 93 sqq.; Carmela Russo Ruggie ri, "'Suae rei e mptio consistere non potest'", in: Sodatitas, Scritti in onore di Antonio Guarino, vol. VI (1984), pp. 2813 sqq.; Arp, Anfangtiche Unmogtichkeit, pp. 95 sq., 122.

51Ulp. D. 18, 1, 28; on this text, see David Daube, "Generalizations in D. 18, 1 de contrahenda emptione", in: Studi in onore di Vincenzo Arangio-Ruiz, vol. 1, pp. 186 sqq.; cf. also Paul. D. 19, 1, 46.

52Cf. e . g. Kas c r, R Pr I , p. 3 81.

53 Gai . I I , 3 sqq. ; M arci . D . 1, 8, 6, 2 sqq. ; In st . II , 1, 7 sqq.

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" . . . it is . . . difficult to credit that even the greenest provincial on his first visit to the mother city could honestly believe that he could take effective possession from another private individual of. . . the Temple of Venus . . . or the Via Sacra";5 4

they did, however, present a problem as far as the sale of a liber homo as a slave was concerned.55 Of course it was not possible to transfer ownership in this instance; but that, as we shall see presently, was not the duty of the seller. The liber homo was an economic asset of which the purchaser could enjoy the habere licere and which was thus capable of being the object of a sale.56 The sanction of invalidity was therefore already in classical Roman law restricted to those cases where the purchaser had been fully aware of the status of the "slave" at the time when the contract was concluded.57 If, on the other hand, he had not known that what he had bought was not a slave but a free man, the contract was regarded as valid.58 This implies that, once the truth had been discovered and the purchaser consequently lost possession of the man, he could bring the actio empti against his vendor in order to claim damages.59 The position has been conveniently summed up by Licinius Rufinus:

"Libcn hominis emptionem contrahi posse plerique existimaverunt, si modo inter ignorantes id fiat, quod idem placet etiam, si venditor sciat, emptor autem ignoret. quod si emptor sciens liberum esse emerit, nulla emptio contrahitur."60

The transaction was considered to be a valid sale "for the purpose of allowing the innocent purchaser an actio empti. Practicality—and the jurists were nothing if not practical—not legal technicality dictated this departure from nicety of principle."61 Otherwise, the purchaser would have been able to avail himself only of an unjustified enrichment claim or of the actio doli—the former merely allowing him to recover the purchase price, the success of the latter being dependent on proof of the vendor's knowledge that the "slave" was free.

Whether the same pragmatic approach was adopted with regard to res divini iuris or whether the classical lawyers regarded the sale of res extra commercium as invalid even if the purchaser had entered the contract in good faith, is not entirely clear. It cannot have been easy, in these cases, for the purchaser to establish his ignorance. This might well be the reason why in texts such as D. 18, 1, 22 and 23 the nullity of the sale was proclaimed without any qualification and, as a consequence

34J.A.C. Thomas, "The Sale of Res Extra Commercium", (1976) 29 Current Legal Problems 139.

35Cf Pap. D. 41, 3, 44 pr.; ". . . nam frequenter ignorantia liberos cmimus"; Paul. D.18, 1, 5: " . . . quia difficile dinosci potest liber homo a servo."

36Stein. Fault, p. 63.

"Cf. e.g. Paul. D. 18, 1, 34, 2.

58Cf. e.g. Pomp. D. 18, 1, 4.

59According to the rules relating to eviction; cf. infra, pp. 296 sqq.

60D. 18, 1, 70. Cf. also Inst. Ill, 23, 5.

fii Thomas, (1976) 29 Current Legal Problems 141; cf. also Arangio-Ruiz, Compravendita, pp, 126 sqq.; Stein, Fault, pp. 62 sqq.; Medicus, Id quod interest, p. 163.

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(only) the condictio was granted to recover the price. Nevertheless, where the purchaser had been "nesciens", invalidity probably implied only that the obligation could not in fact be discharged.62 Ulpianus granted an actio in factum to the purchaser ("Si locus religiosus pro puro venisse dicetur, praetor in factum actionem in eum dat ei ad quem ea res pertinet"),63 which paved the way for his pupil Modestinus finally to make the actio empti available in these cases too:

"Qui nesciens loca sacra vcl religiosa . . . pro privatis comparavit, licet emptio non teneat, ex empto tamen adversus venditorem experiatur ut consequatur quod interfuit eius nc deciperetur."M

Justinian consolidated the position and placed both cases (the sale of a res extra commercium and that of a free man) on a par.65 But what could the purchaser recover with his actio empti? Modestinus says "quod interfuit eius ne deciperetur"; Justinian formulates "quod sua interest deceptum eum non esse". This sounds like what the modern lawyers would call the negative interest. And, indeed, these texts did provide the historical basis and dogmatic point of departure for that doctrine.66 The aim of granting a claim for damages, so it was argued, is to put the injured party financially in whatever position he would have been in had the wrongdoer acted properly. Hence, in order to determine the quantum of damages, the fraudulent misrepresentation has to be eliminated in thought. If the vendor had not deceived the purchaser, the latter would not have entered into the contract. As a consequence, he can claim only his interest in the non-conclusion of the contract, not his (positive) interest in the validity of the contract. The hypothetical basis for assessing his damages should therefore be the position he would have been in had the contract not been concluded; not the position he would have been in if the contract had come into existence and been properly carried out.

The distinction between negative and positive interest has certainly proved to be a valuable one and plays a significant role in the modern

( "e x e mpto" inte rpolate d) e . g. Arangio-Ruiz, Compravendita, pp. 132 sq.; Medicus, Id quod interest, pp. 164 sq.; Arp, Anfangliche Unmoglichkeit, pp. 104 sqq.

hist. Ш, 23, 5: "Loca sacra vel religiosa, item publica, veluti forum basilicam, frustra quis sciens emit, quas tamen si pro privatis vcl profanis deceptus a venditore emcrit, habebit actionem ex empto, quod non habere ei liceat, ut consequatur, quod sua interest deceptum eum non esse. idem iuns est, si hominem liberum pro servo emerit." Decipere indicates that the seller must be guilty of dolus, i.e. the action was granted only where the vendor was sciens, the purchaser ignorans. In decreeing the same as far as the sale of a liber homo was concerned, Justinian changed the law; according to classical law, in this instance, the purchaser could sue even where the seller had also been ignorans.

66 Cf. Rudolf von Jhering, "Culpa in contrahendo, oder Schadenscrsatz bei nichtigen oder nicht zur Perfektion gelangten Vertragen", (1861) 4JhJb 16 sqq.; Windschcid/Kipp, § 307, n. 5.

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German law of damages.67 But it does not represent Roman law. "Quod interest deceptum non esse" should not be taken as a conceptual deviation from the normal quod sua interest; it did not entail any restriction as tar as the recoverable interest was concerned. The injured party could claim his (full) interest in not having been deceived. This interest, however, was probably assessed on the basis of what the purchaser would have had had the object of the sale in fact been what he had believed it to be, not only on the basis of what he would have done had he realized that the vendor was deceiving him.68

(c) Culpa in contrahendo

Ulp. D. 11, 7, 8, 1, Mod. D. 18, 1, 62, 1 and Inst. Ill, 23, 5, incidentally, did not only stand at the cradle of the concept of negative interest in the modern law of damages, but were also among the handful of texts which inspired Rudolf von Jhering to formulate his celebrated doctrine of culpa in contrahendo.69 Contractual diligentia, he postulated, is owed not only where the contract has come into existence but also where it is still in statu nascendi. With the commencement of their negotiations, the parties are entering into a (quasi-)contractual relationship giving rise to rights and duties. Based on the reasonable expectations engendered by the precontractual contact, these rights and duties go beyond the compass of the law of delict and are to be determined in accordance with the contract which the parties intend to conclude. Infringement of the duties in contrahendo by one of the parties entitles the other to claim the damages that he has suffered in relying on the eventual conclusion/validity of the contract. The liability is contractual and it is based on culpa; compensation is limited to the negative interest. For a far-ranging theory of precontractual liability of this sort, the Roman texts naturally provide only tentative intimations. In fact, Jhering's "legal discovery"70 was a product of the method of conceptual construction prevailing in the second half of the 19th century71 rather than the result of an impartial exegesis of the historical Roman law.72 We have seen, for instance, that in cases of sale of res

67 Cf. e.g. § 122 I: "If a declaration of intention is . . . rescinded under § § - . . , the declarant shall . . . compensate (the other) party . . . for the damage which the other . . .

party sustained by relying upon the validity of the declaration, not, however, beyond the value of the interest which the other . . . party has in the validity of the declaration" (i.e. positive interest as the limit for the negative interest). Cf. also §§ 179 II, 307, 309 BGB and Lange, Schadensersatz, pp. 44 sqq.

6SCf. Honsell, Quod interest, pp. 87 sqq., 108 sq.; Kaser, RPr I, p. 549. fi9 In his article referred to supra, note 66.

Hans Dolle, "Juristische Entdeckungen", in: Verhandlungen des 42. Dattschen Juristentages, vol. II (1959), pp. Bl sqq.

1 For a detailed analysis, see Erich Schanze, "Culpa in contrahendo bei Jhering", (1978) 7 lus Commune 326 sqq.

72 On fault in the formation of contract in Roman law generally, see Karl Hcldrich, Das

Verschuldeti beim Vertragsabschtuss im ktassischen romischen Recht und in der spiiteren Rechtsentwicklung (1924); Stein, Fault, passim.

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extra commerciurn the parties were liable only for dolus, not culpa in contrahendo. Herejhering could draw attention to the Prussian code of 1794 as evidence for the fact that this result was no longer accepted as equitable. § 284 I 5 read:

"Was wegen des bei Erfiillung des Vertrages zu vertretenden Grades der Schuld Rechtens ist, gilt auchfiir den Fall, wenn einer der Contrahenten bei Abschliessung des Vertrages die ihm ohliegenden Pfiichten vernachldssigt hat."7*

Culpa in contrahendo has become a firmly established feature of the legal landscape of German private law, albeit praeter legem, i.e. as a growth ofjudge-made law.74 It has even been (ab)used for a somewhat uncouth intrusion into the realm of delict; but this is a more domestic problem arising, largely, from an unfortunate stumbling block defacing the German law of delict.75 Culpa in contrahendo falls squarely into the grey area between the law of contract and the law of delict, and there is much to be said for the proposition that it does not fit neatly into either of these, but rather forms an integral part of a third "track" of liability.76 But however one might assess these systematic implications, the impact of Jhering's doctrine, both in Germany and abroad, shows the practical need for and legitimacy of (non-delictual) liability for culpa in contrahendo.77

5.Emptio rei speratae and emptio spei

(a)Emptio rei speratae

No valid sale without a thing to be sold: that was the rule. It sometimes happened, however, that objects were sold which had, as both parties knew, not yet come into existence, but were expected to do so in the foreseeable future; indeed, such transactions concerning res futurae

73"What is right with regard to the degree of fault for which (a debtor) is responsible when performing his contractual obligation, is also applicable if one of the contracting parties has neglected the duties incumbent on him in concluding the contract."

74Cf., for example, Hans Stoll, "Tatbestande und Funktioncn der Haftung fur culpa in contrahendo", in: Festschrift fur Ernst von Caemmerer (1978), pp. 435 sqq.; Dieter Medicus, "Verschulden bei Vertragsvcrhandlungen", in: Gutachten und Vorschldge гиг Uberarbeitttng des Schuldrechts, vol. I (1981), pp. 479 sqq.; Peter Gottwald, "Die Haftung fur culpa in contrahendo", (1982) Juristische Schulung 877 sqq.

75This is § 831 BGB, dealing with vicarious liability. See infra, pp. 1125 sq.

76Cf., in particular, Claus-Wilhelm Canaris, Die Vertrauenshaftung im deutschen Privatrecht

(1971); idem, "Schutzgesetze—Verkehrspflichten—Schutzpflichten", in: (Zweite) Festschrift

fUr Karl Larenz (1983), pp. 27 sqq.

77 Cf. e.g. § 45 of the Czech BGB (1950): "A party who has negligently or intentionally caused a legal transaction to be invalid, is bound to compensate for the damage suffered by the other party in relying on the validity of the contract"; artt. 1337 sq. codice civile. For comparative views on culpa in contrahendo, see Rudolf Nirk, "Rechtsvergleichendcs гиг Haftung fur culpa in contrahendo", (1953) 18 RabelsZ 310 sqq.; Friedrich Kesslcr, Edith Fine, "Culpa in Contrahendo, Bargaining in Good Faith, and Freedom of Contract: A Comparative Study", (1964) 77 Harvard LR 401 sqq.; Friedrich Kessler, "Der Schutz des Vertrauens bei Vertragsverhandlungen in der neueren amerikanischen Rechtsprechung", in:

Festschrift fur Emst von Caemmerer (1978), pp. 873 sqq.; Stoll, Festschrift von Caemmerer, pp. 435 sqq.

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were very old and common in Rome. In Cato, de agri cultura,78 we encounter the sale of olives on the tree, grapes on the vine, winter fodder which is still growing and the yield of a flock of sheep. The range of possible transactions was not confined, however, to situations where the object of the sale had not yet been harvested but was already growing. Next year's harvest from a specific field or the offspring of a certain number of dams (or of a slave) could be sold, even if the seed had not yet been sown, the mother-sheep or -slave not yet been inseminated.79 Our main testimony dealing with the legal effects of such transactions is Pomp. D. 18, 1, 8 pr:

"[E]t tamen fructus ct partus futun rcctc cmentur, ut, cum editus esset partus, iam tune, cum contractum esset negotium, venditio facta intellegamr: sed si id egerit venditor, ne nascatur aut fiant, ex empto agi posse."

The sale was taken to be subject to a condition.80 Only if it eventually transpired that there was an object, did the contract of sale become effective (ex tune, i.e. with retroactive effect). If the crop failed, the contract of sale failed too. As a consequence, it was only in the former case that the prospective purchaser had to pay the purchase price. The risk that the whole of his harvest might be destroyed by hail or inundation, or that his slave might turn out to be infertile was therefore still carried by the vendor. In order to provide for the possibility that the harvest be brought in, but prove to be disappointingly small, the purchase price was normally fixed proportionately to the actual yield (so and so much per bushel, per pound, etc.). If the vendor, subsequent to the conclusion of the contract, regretted the terms of the sale and therefore prevented fructus or partus (and with it the contract of sale) from coming into existence, the condition, in accordance with general principles,81 was deemed to have been fulfilled, the contract deemed to have become effective. This type of transaction has come to be known as emptio rei speratae. The Roman lawyers themselves did not use a specific term to designate it and, indeed, the transaction had nothing abnormal about it. In particular, it did not constitute an exception to the rule that a valid sale required a thing to be sold.

(b) Emptio spei and its viability

However, the Roman lawyers were prepared to go even one step further. Could the parties not have intended to shift the risk of there

78CLV sqq., 146 sqq.

79For details of the development, see Volker Kurz, " 'Emptio rei speratae' 'pura' oder 'sub

condicione'?", (1974) 20 Labeo 195 sqq.

8(J Arangio-Ruiz, Compravendita, pp. 118 sqq.; Masi, Condizione, pp. 63 sqq., 158 sqq.,

224 sq.; Alfredo Calonge, "En torno al problema de la retroactividad de la condicion en el derecho clasico", in: Studi in onore di Edoardo Votterra, vol. Ill (1969), pp. 158 sq.; Thomas, TRL, p. 282; unconvincing Kurz, (1974) 20 Labeo 194 sqq., 199 sqq., according to whom the emptio rei speratae was an unconditional sale.

81 Cf. infra, pp. 730 sq.

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being no crop onto the purchaser? One can easily imagine a situation where a farmer urgently needs money and, at the same time, wants to insure himself against the vagaries of the weather. The purchaser, on the other hand, might be prepared to speculate, and risk his money, in return for the chance of making a big profit.82 Where, in fact, a lump sum was fixed at a fairly low level for the whole yield, it could be surmised that the parties intended their transaction to work this way. What we are dealing with, under these circumstances, is not a normal business transaction:83 it contains a strong element of gambling. It is not surprising, therefore, that our sources concentrate on different examples when they discuss this type of contract: the purchase of a prospective haul offish, of a catch of birds, or of the largesse which a triumphant princeps might have ordered to be thrown to the populace and which a particular person was able to pick up.84 One might be tempted to ask whether such kinds of transactions are not too silly to deserve legal analysis. How often did it happen that a stroller along the shore came across some fishermen and decided to offer them his purse for the next haul?85 And, assuming that a contract of sale did come into existence on these terms, would he not run the risk of having to pay the price, even though the fishermen subsequently neglected their duty to catch fish and merely spent two idle hours on a pleasure cruise around the bay?

But, firstly, as David Daube has pointed out, we should not only have in mind the casual stroller when assessing the viability of this type of contract.

"[W]e must also think, say, of a firm of victuallers at Rome undertaking to pay certain fishermen at Pcssinus a fixed sum for their catches of cod during the

82Nicholas, Introduction, p. 173.

83But cf. Dennis Paling, "Emptio spei and emptio rei speratae", (1973) 8 The Irish Jurist 178 sqq.

84Cf. esp. Pomp. D. 18, 1, 8, 1.

a5 But cf. the famous case submitted to the Delphic oracle (Plutarch, Vitae, Solon, 4, 1 sqq.; cf. the discussion by Pothier, Traite du contrat de vente, n. 6; Herbert William Parke, D.E.W. Wormell, The Delphic Oracle, vol. I (1956), pp. 110 sqq.; David Daube, "Purchase of a Prospective Haul", in: Studi in onore di Ugo Enrico Paoli (1955), p. 203). Some Milesians bought from some fishermen the next haul of their net. It proved to include a golden tripod. Had the purchasers bought only such fish as might be caught or the haul, whatever it might contain? The Pythia awarded the tripod to neither of the parties but to the wisest man that could be found. It was sent to Thalcs of Miletos, the Ionian philosopher and natural scientist, who, however, declined to accept it and sent it to another philosopher, whom he considered wiser than himself. On the same argument the tripod passed through the hands of all the Seven Wise Men (tradition refers to Kleobulos of Lindos, Solon of Athens, Chilon of Sparta, Thales of Miletos, Pittakos of Mitylene, Bias of Priene and Periandros of Korinthos as the septem sapientes), until it was realized that no mortal was as wise as Apollo. Hence it was sent to the temple of Apollo at Delphi and dedicated to that god (that is, the master of the Delphic oracle, to whom the case had originally been submitted).

a "Certainty of Price", in: Studies in the Roman Law of Sale in memory of Francis de Zulueta

(1959), p. 12. For another practical example, see the sale of a vindemia pendens, as related by Plinius, Epistulae, Lib. VIII, 2; cf. J.E. Spruit, "Schikanen anlasslich eines Traubenkaufs", in:

Satura Roberto Feenstra oblata (1985), pp. 158 sqq.

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And as to the second question, one has to remember that sale was a bonae fidei contract. The fishermen, under a contract of sale, had a duty to cast their net and to make a reasonable effort to procure a good haul.87

The third of the above-mentioned examples, too, is not as foolish as it sounds to us. True, the throwing of largesse is somewhat out of fashion today. In Rome, however, consuls, praetors or emperors liked to mark triumphs or other kinds of feasts with such an act of generosity: not only coins were thrown to the mob but also various kinds of food, tickets for grain, clothing, gold, silver, precious stones, pearls, paintings, slaves, and even animals.88 What a skilled person could catch was certainly worth a considerable investment. Again, as concerns the temptation on the part of the seller to neglect his duties in the scramble for largesse, once he had secured his right to claim a purchase price, the fact that sale was bonae fidei implied that he could bring the action only if he himself had done his best. Furthermore, it has to be taken into consideration that for the purposes of analysing a specific problem, simple and more theoretical cases were sometimes used rather than the more complex situations which occurred in actual practice. Suppose the purchaser bought half of the largesse picked up by the vendor:89 the latter would then have an economic incentive to catch "as catch can". The legal problem remains the same.

(c) ". . . quasi alea emitur"

As has already been indicated, the Roman lawyers accommodated this type of transaction within the framework of the contract of sale:

"Aliquando tamen et sine re venditio intellegitur, vcluti cum quasi alea emitur. quod fit, cum captum piscium vel avium vel missilium emitur: emptio enim contrahitur etiam si nihil inciderit, quia spei emptio est: at quod missilium nomine со casu captum est si evictum fuerit, nulla eo nomine ex empto obligatio contrahitur, quia id actum intellegitur."*1

This was emptio spei and, as opposed to the emptio rei speratae, it was not conditional but came into existence immediately. Whether,

H7Cf. Cels. D. 19, 1, 12.

m Cf. Suetonius, De vita Caesarum, Nero, XI, 4, describing what was thrown to the streets at the occasion of one of Nero's entertainments. Another legal problem arising from the throwing of largesse (acquisition of ownership) is discussed in Gai. D. 41, 1, 9, 7 and Inst. II, 1, 46. For further discussion, see Daube, Studi Paoli, pp. 205 sqq.; Liebs, RR, pp. 165 sq.; Ferenc Benedck, "'Iactus missilium'", in: Sodatitas, Scritti in onore di Antonio Guarino, vol. V (1984), pp. 2108 sqq.

H9 Daube, Studi Paoli, p. 205.

90 Pomp. D. 18, 1,8, 1. The classidty of this text has been vindicated by Max Kaser, "Erbschaftskauf und Hoffnungskauf", (1971) 74 BIDR 47 sq.; cf. also already Daube, Studi Paoli, pp. 204 sqq. and J.A.C. Thomas, "Venditio herediiatis and emptio spei", (1959) 33 Tulane LR 541 sqq. Cf. also Ulp. D. 19, 1, 11. 18.

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eventually, there was an object to be sold or not did not matter.91 It is interesting to note that Pomponius acknowledged that this constituted, in fact, an exception to the rule "no sale without an object to be sold". At the same time, he gave an ingenious argument for allowing this exception. It is not necessarily the res futura which the purchaser buys; instead, if nothing comes up, it is the hope (spes) that something might have come up. Thus, one can look at the contract as if (not a res, but) a chance ("quasi alea"), which may or may not materialize, has been the object of the transaction.

A further interesting instance of an emptio spei can be found in Ulp. D. 18, 4, 11:

"Nam hoc modo admittitur esse venditionem lsi qua sit hereditas, est tibi empta', ct quasi spes hcreditatis: ipsum enim incertum rei veneat, ut in retibus."

A hereditas could be the object of a contract of sale, but only if the person in respect of whose estate the transaction was effected had already died—contracts concerning the estate of living persons are (and were) unacceptable for reasons of public policy and morality.92 If a person believed himself to be the heir and sold his inheritance, he was normally liable to the purchaser once it turned out that the inheritance had actually fallen to somebody else.93 This was not so if it had specifically been provided "ut quidquid iuris haberet vcnditor emptor haberet".94 The tacit guarantee was effectively excluded; the vendor was obliged to transfer the inheritance95 if he became heir; otherwise his obligation fell away. It did, however, happen that the parties went one step further and agreed that the vendor was not only exempted from liability if he had not, in fact, become heir, but that he should be allowed to retain the purchase price too.96 This is the situation referred to by Ulpianus, and this indeed resembles the purchase of the next haul of the net. It was an emptio spei.97 Of course, the vendor remained liable for dolus.

91 If the vendor faile d to make a de ce nt e ffort to procure the obje ct, he was liable (under the actio empti) for damages, to be estimated according to the speculative value of the catch: cf. Cels. D . 19, 1, 12.

as possible. Se e, too, Paul D. 18. 4, 7,

lav. D. 18, 4, 8; Paul . D. 18, 4, 9. T his was the othe r group of te xts, on which Jhe ring base d his culpa in contrahe ndo the ory; cf. supra, pp. 244 sq.

94 Paul. D . 18, 4, 13.

9 1 5 T he nor m al mo de of tran sfe r w as in iure ce ssio he re ditatis; se e V oci, D E R, vol . I , pp. 98 sqq. ; Kase r, R Pr I , pp. 722 sq.

96 One ca n think, for instance , of a Ro ma n wh o he ars that his uncle in Athe ns has die d. He is sure that his uncle has instituted him as his heir. Being short of mone y, he sells his spes he re ditatis . A s the pu r c ha se r be ars t he ris k of t he ve nd o r n ot h a v in g be co me he ir, t he pur ch ase pri ce will, ho we ve r, n ot be ve r y hi gh. Cf. Kase r, ( 19 71) 74 B I D R 55.

97 Cf. T homas, ( 1959) 33 Tulane LR 545 sqq. and e spe cially M ax Kase r, "E rbschaftskauf

und Hoffnungskauf", (1971) 74 BIDR 50 sqq.

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III. THE PURCHASE PRICE 1.

Did the purchase price have to consist in money?

(a) The Sabinian view

The second essential element of any contract of sale was agreement about the price, and the first fundamental question that posed itself in this regard was whether the price necessarily had to consist in money. Or, to put the same question slightly differently: did the rules relating to sale apply to exchange transactions? This problem was the subject of one of the most famous school controversies in classical Roman law.9H It must be borne in mind that the answer to it had an immediate and dramatic practical consequence: only if they could fly the flag of sale were consensual exchange deals at all actionable; otherwise they were bound to tounder helplessly on the shallow sands of the Roman contractual system. This explains the persistent attempts of the Sabinians to broaden the only channel that was close enough to prevent this disaster: emptio venditio. Their proposition was based on an historical argument:

"Origo emendi vendendique a permutationibus coepit. ohm cnim non ita erat nummus neque ahud nierx, aliud pretium vooibatur, scd unusquisquc secundum neccssitatcm temporum ac rerum utilibus inutilia permutabat, quando plerumque evenit. ut quod alter: supcrcst alteri desit. scd quia non semper nee facile concurrebat, ut, cum tu haberes quod ego desiderarem, invicem habcrem q'uod tu accipere velles, electa matcria est, cuius publica ac perpetua acstimatio difticultatibus pcrniurationum aequalitate quantitatis subvenirct. eaquc materia tor ma public percussa usum dominiumquc non tam ex substantia pracbet quani ex quantitatc, nee ultra mcrx utrumque, sed alterum pretium vocatur."'1'1

This is a most interesting lecture in economic history,шп taking us back to the days of the early subsistence economy. Whatever was needed over and above what was produced on the own farm could be acquired only, before money was introduced, by way of exchange. The introduction of money finally solved the problem that the other party might not actually be interested in the goods offered in exchange; by virtue of the value that it represented, it came to be regarded as a generally acceptable counter-performance.1"1 Thus sale was born, but it had its origin in exchange. It was in actual tact, in the Sabinian view, nothing more than a refined and specialized form of exchange. Or, the other way round: exchange is the most ancient form of sale.102 If the latter was generally regarded as enforceable, then surely the mother transaction could not lack this most vital of attributes.

'''" Paul- D. 18, 1, 1, 1; Gai. Ill, 141. Cf. e.g. Arangio-Ruiz, Comprat'endita, pp. 134 sqq.; David Daube, "The Three Quotations from Homer in Digest 18, 1. 1, i", (1949) 10

Cambridge LJ 213 sqq.

99 Paul. D. 18, 1, 1, pr.

1(1" For a discussion, see Herman van den Brink. The Charme of Legal History, 1974, pp. 79 sqq.; Altons Burge, "Geldund Natural wirtschaft im vorklassischen und klassischen

romischen Recht". (1982) 99 ZSS 142 sqq.

1(11 For details of the development, see Burge, (1982) 99 ZSS 128 sqq. 1(12 Gai. Ill, 141.

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