!!Экзамен зачет 2023 год / The Law of Obligations

CHAPTER 9

Emptio venditio II

I.THE PASSING OF OWNERSHIP

1.The relationship between contract of sale and transfer of ownership

Thus far we have considered the basic requirements for a contract of sale to come into existence. We must now turn our attention to the main effects of such a contract. These were twofold. Firstly, certain obligations arose on the part of both the vendor and the purchaser (sale obviously being a bilaterally binding contract), and for the enforcement of these obligations the law provided two actions, the actiones empti and venditi. Secondly, upon perfection of the sale (that is, normally with its conclusion) the risk of accidental loss passed to the purchaser. One consequence, in particular, the contract of sale did not have: the passing of ownership. This required a separate act of conveyance: mancipatio in the case of res mancipi, traditio as far as res nee mancipi were concerned, alternatively for both categories of things in iure cessio.1 All these acts aimed at publicity: real rights, potentially affecting everyone (they are enforceable against anyone who withholds the thing from the person entitled to it), were not to be acquired or transferred in private.

The Roman separation of obligatory act and conveyance is still maintained in many modern legal systems. In German and South African law conveyance of the property is not only separate from the underlying obligatory act, it is also to be evaluated entirely independently and on its own merits. It is thus abstract in the sense that ownership may pass, even though the contract of sale might be invalid or might not have come into existence at all. In Rome only mancipatio and in iure cessio were abstract. Traditio was causal in that, in order to transfer ownership, it had to be based on a iusta causa traditionis (as, for example, a valid contract of sale).2 There are legal systems, however, which adopt an entirely different approach. They do not require a separate act of conveyance, but allow ownership to pass upon conclusion of the sale.3 The French code civil provides a fine example.

1In iure cessio and mancipatio had fallen into disuse by the time of Justinian. According to the Digest, therefore, traditio is the only way of transferring ownership.

2Cf., for example, Kascr, RPr I, pp. 416 sqq.

3The doctrine that ownership passes by mere agreement of the parties goes back to the natural lawyers of the 17th and 18th centuries; c{. e.g. Hugo Grotius, De jure belli ac pacts, Lib. II, Cap. II, 1; Samuel Pufendorf, De jure naturae el gentium. Lib. IV, Cap. IX; Christian

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Its art. 1583 reads:

"Elle [sc: the contract of sale] est parfaite entre les parties, et la propriete est acquise de droit a l'acheteur a l'egard du vendeur, des qu'on est convenu de la chose et du prix, quoique За chose n'ait pas encore ete livree ni le prix payeV'4

According to both the Roman and the French construction of sale, of course, the purchaser acquires a right to enforce the vendor's obligation to transfer the object sold; but, whereas this is a mere ius in personam in the one system, it is a ius in rem in the other. This difference has practical consequences in two situations.5 If the vendor, after conclusion of the sale but before delivery, has fallen insolvent, the purchaser who is able to assert ownership and thus to remove his object from the bankrupt's estate, is in a much better position than his Roman counterpart, whose personal claim against the vendor competes with all the claims of other creditors. Again, the purchaser's position is more favourable under the French construction where the vendor first sold (but did not deliver) the object to him, and subsequently sold and delivered it to a third party, before either disappearing or becoming insolvent. He can then vindicate the object from the third party. According to Roman law, he would have only his fairly useless personal action against the vendor. Neither of the solutions, incidentally, can be said to be more just or equitable than the other. However one decides this conflict, one honest party (either the purchaser or the third party) will have to suffer for the act of a dishonest one. The Roman approach, however, seems to be more conducive to certainty of law and therefore more in line with the requirements of trade and commerce. Once delivery has been made, the position of the transferee is secure, at least in so far as he does not have to fear that previous purchasers might turn up and vindicate the thing from him.6

2.The payment of the purchase price

(a)Inst. II, 1, 41

Transfer of ownership in Roman law—and in the ius commune—was thus usually based on the two elements of iusta causa and traditio; or, to use the terminology of the German usus modernus, on titulus and modus.7 Where such transfer resulted from a contract of sale, however, there was a further requirement. This is apparent from Inst. II, 1, 41:

Wolff, Institutions furis Naturae et Gentium, §§ 313 sqq.; and see William M. Gordon, Studies in the Transfer of Property by traditio (1970), pp. 172 sqq.

4As far as English law is concerned, cf. Buckland/McNair, pp. 291 sqq.

5Cf. e.g. Nicholas, Introduction, pp. 101 sqq.

6The transferee's position will be even safer where a legal system recognizes acquisition of ownership (from a non-owner) in good faith. This is the case in modern German law (§§ 932 sqq. BGB), but was different in Roman law (which did, however, offer some protection to the purchaser by way of establishing short periods for acquisitive prescription (usucapio)).

7Cf. only Coing, pp. 178 sqq.

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"Sed si quidcm ex causa donationis aut dotis ant qualibct alia ex causa tradantur, sine dubio transferuntur: venditae vero ct traditac non alitcr emptori adquiruntur, quam si is venditori pretium solvent vel alio modo ci satisfecerit, veluti cxpromissore aut pignore dato. quod cavetur quidem etiam lege duodecim tabularum: tamen rccte dicitur et iure gentium, id cst iure naturali, id effici. sed si is qui vendidit fidem emptoris sccutus fuerit, dicendum cst stadm rem emptoris fieri."

Ownership, according to the first sentence of this text, will pass only once the purchase price has been paid (or security been given). According to Justinian, this rule goes back to the XII Tables8 and is based on natural law. But whatever its age, its venerability, or the breadth of its acceptance, the rule was rendered more or less nugatory in the very next sentence: for here it was said to be sufficient that the vendor "puts his trust in the buyer". It is, however, just in these cases, where the vendor has relied upon the purchaser's inclination and ability to pay the purchase price, that he would have needed the protection that the rule under discussion was obviously prepared to grant to him: namely that he should have been able, until the buyer had fulfilled his obligation, to assert his right of ownership and thus not lose out in case the purchaser became insolvent.

The rule contained in Inst. II, 1, 41 (which is in line with a Pomponius fragment of questionable authenticity)9 has been consistently followed in the ius commune;10 it is still applied in modern South African law.11 In the course of this century, however, an intense discussion has arisen about its origin and development in Roman law.12

H Both Pringshcim and Schindler (tf. infra, notes 12, 13 ) maintain that the XII Tables cannot have contained a provision of this kind. But why should Justinian have invented (or grossly distorted) it? (Alfons Biirge, "'Geldund Naturalwirtschaft im vorklassischcn und klassischen mmischen Recht", (1982) 99 ZSS 149).

9 Pomp. D. 18, 1, 19: "Quod vendidi non alitcr fit accipientis, quam si aut pretium nobis solutum sit aut satis eo nomine factum vel etiam fidem habuerimus emptori sine ulla satisfactione."

10 Cf., for example, Vinnius, Institutiones, Lib. II, Tit. I, 41; Voet, Commentarius ad Pandectas. Lib. VI, Tit. I, 14 sq.; Grotius. In!eidin%, II, V, 14; Pothier, Trait? dtt contra! de vente, §323; Windscheid/Kipp, § 172, 7; Daniels v. Cooper (1880) 1 EDC 174 sqq.; for details, see Robert Feenstra, Reclame en Revindicate (1949), pp. 98 sqq., 255 sqq.; idem, "Eigendomsovergang Ы) koop en terugvorderingsrecht van de onbetaalde verkoper: Romeins recht en Middefeeuws handelsrecht", (1987) 50 THRHR 134 sqq,; Going, pp. 307 sq.; more particularly on the glossators and commentators, Klaus Luig, "Ubergabc und Ubercignung der verkauften Saehe nach romischem und gememern Recht", in: Saturn Roberto Peenstva oblata (1985), pp. 445 sqq. The rule has not been taken over into the BGB ("Motive", in: Mugdan, vol. Ill, p. 186).

1For details, see C.G. van der Merwe, Sakereg (1979), pp. 203 sq.; Kerr, Sale and Lease. pp. 112 sqq. Aceording to Shippard J (Daniels v. Cooper (1880) 1 EDC 174), South African law in this regard is "at variance with every well-considered modern system ot mercantile law throughout the world"; but d. Art. 1191 BW and Feenstra, (1987) 50 THRHR 128.

12For a summary of the main views, see J.A.C. Thomas, "Institutes 2, 1, 41 and the Passage of Property on Sale" (1973) 90 SAL] 150 sqq.; d. further Karl-Heinz Schindler, "Die Bedeutung der Kaufprciszahlung im nachklassischen romischen Recht", in: Festschrift fiir Konrad Dttdeti (1977). pp. 555 sqq.; Tony Honore, "Sale and the Transfer of Ownership:

the Compilers' Point of View", in: Studies in Justinian's Institutes in Memory of J . A . C 'Thomas

(1983), pp. 56 sqq.; Feenstra, (1987) 50 THRHR 127 sqq.

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Fritz Pringsheim launched a sweeping attack on the classicity of the rule; he attributed it in its entirety to Justinian.13 Some regard only the qualification to the rule (Inst. II, 1, 41, second sentence) as Justinianic.14 Others relate the price requirement to the availability of the actio auctoritatis, by which the transferee in a mancipatio could sue the transferor upon eviction for double the purchase price.15 Those who accept the classicity of our rule are divided as to whether it applied to traditio but not to mancipatio,16 to mancipatio but not to traditio,17 or to both forms of transfer of ownership.18 Then there are those who are irritated by the fact that the rule is emasculated, for all practical purposes, by its qualification;19 they have tried to save the former by assuming that an express grant of credit was necessary for the latter.20 Today one tends to believe that Inst. II, 1, 41 does in fact represent not only Justinianic but also classical Roman law.21 This applies not only to the principle that transfer of ownership depended on payment of the purchase price but also to the qualification according to which fidem emptoris sequi was regarded as sufficient. Furthermore, it has been demonstrated by Robert Feenstra that this latter clause signifies tacit reliance on the faith of the buyer.22

(b) Pre-classical, classical and post-classical law

Any account of the development of the rule in pre-classical law must remain largely a matter of speculation. Personally, I would tend to

" Der Kaufmit fremdem Geld (1916), pp. 50 sqq.; but sec also the same author in The Greek Law of Sale, pp. 179 sqq.; cf. further Schindler, Festschrift Duden, pp. 555 sqq,

14Cf. e.g. Ernst Schonbauer, "Zur Frage des Eigentumsuberganges beim Kauf", (1932) 52 Z_S5 195 sqq.

15Cf. Arangio-Ruiz, Compravendita, pp. 276 sqq.; Buckland/Stein. p. 240; cf. also Thomas, (1973) 90 SALf 158.

16Philippe Meylan, "Lc paiement du prix et le transfert de la propriete dc la chose vendue en droit romain classique", in: Studi in onore de Pietro Bonfante, vol. I (1930), pp. 441 sqq.; Watson, Obligations, pp. 62 sqq.

17Emiiio Albertario, "II momento del trasferimento della propneta nella compravendita romana", in: Studi di diritto romatw, vol. Ill (1936), 427 sqq.

шMax Kascr, (1966) 34 TR 412 sqq.; idem, "StelJvertretung und 'notwendige Entgeltlichkeit'". (1974) 91 ZSS 161 sq.

1Honore, Studies Thomas, p. 58, has pointed out, though, that the result is not the same

as it would be if ownership were to pass automatically with delivery. "For it is quite possible for the seller to make clear that he does not rely on the buyer's good faith alone, though he does not, at the moment of delivery, obtain payment or satisfaction, either. Thus, he may ask the buyer to provide security, e.g. to get a friend to guarantee payment of the price. The buyer may promise to do this, yet fail to carry out his promise. If, then, the seller parts with possession on the faith of such a promise, he does not . . . fidem emptoris sequi, but neither does he obtain payment or satisfaction." The same applies where the purchaser has promised to pay at once and then, after he has obtained possession of the thing, fails to honour his promise.

20Pothier, Traite du control de vente, n. 324; De Zulueta, Sale, pp. 37 sq.

21Cf. esp. Kaser, RPr I, p. 418; idem, RPrU. p. 284; Jors/Kunkel/Wenger, pp. 129 sqq.; cf also Honsell/Mayer-Maly/Selb, p. 162.

Robert Feenstra, "Fidem emptoris sequi", in: Studi in onore di Ugo Enrico Paoli (1955). pp. 273 sqq. Approved by (e.g.) Watson, Obligations, pp. 62 sq.; Kaser, (1966) 34 TR 412; Thomas, (1973) 90 SALf 151, 159.

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relate it to the old Roman cash sale principle and to the gradual emergence of the fully executory consensual sale. In the olden days, when sale necessarily meant executed sale, it was a matter of course that payment of the purchase price and transfer of the object sold coincided. This reflected the fact that the one performance was made in exchange for the other. As time went on, the purchase price could be credited and it then no longer necessarily had to be paid at the time when the contract was concluded.23 It was not unreasonable at all, under these circumstances, to limit the practical consequences of this relaxation of the cash sale principle and to make (or rather: continue to make) transfer of ownership dependent upon payment of the purchase price. This was the least one could do to maintain the balance of do ut des inherent in the sale. After all: why should the fact that the purchaser was granted indulgence put the vendor at a disadvantage? However, this rationale was bound to fade once sale had become a fully executory contract. If the parties agreed to a contract of sale, that was one thing. How and when they would carry out the obligations arising from this transaction was a different matter. Both the delivery of the thing and/or payment of the purchase price could be postponed and the special protection of the vendor was therefore no longer necessary in order to maintain the institutional balance of a sale transaction. Hence the indifference of the classical lawyers to our rule: they liberally extended exceptions that had long since been recognized24 until they had largely

neutralized the rule; they also sometimes seem to have simply ignored it.25

One may well ask why Justinian faithfully preserved the position in classical law for posterity rather than simply allow this process of oblivion to continue. The answer lies in the development of postclassical law: for under the influence of the Hellenistic legal systems,26 with their principle of necessary remunerativeness, the idea of payment of the purchase price as a prerequisite for the transfer of ownership was not only not put to sleep — it was energetically revived.27 The whole concept of the consensual and fully executory contract broke down and the sale was regarded as binding only once the

23 Cf. supra, p. 237.

24 The XII T able s alre ady see m со have relaxe d the principle by allowing a promise in the

form of a stipulation (expromittere) as an acceptable substitute for the payment of the purchase price.

^ Cf. e.g. Gai. II, 20: "Itaque, si tibi vestem vel aurum vel argentum tradidero, sive ex venditionis causa sive ex donationis sive quavis alia ex causa, statim tua fit ea res. . . ." Cf., further, С 4, 49, 1 (Carac); 3, 32, 12 (Diocl. et Max.).

Cf. esp. Pringsheim, Der Kauj mit fremdem Geld, op. cit., note 13, pp. 1 sqq. and passim (e.g. 40 sqq., 163 sqq.); idem, Sale, e.g. pp. 190 sqq.

Kaser, RPr II, pp. 278 sq.; Levy, Vulgar Law, pp. 131 sqq. (for the Roman-Germanic kingdoms cf. pp. 156 sqq.); but see Schindler, Festschrift Duden, pp. 560 sqq.; Wulf Eckart

Voss, Recht und Rhetorik in den Kaisergesetzen der Spatantike (1982), pp. 190 sqq.

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purchase price had been paid.28 Payment of the purchase price made the purchaser owner of the object sold and gave him the right to demand its transfer. Institutiones II, 1, 41 does not, therefore, represent the final mark of a continuous development, but has to be seen as an attempt to reconcile generally accepted notions and practices of Justinian's time with the principles of classical Roman law. Hence the retention of the rule, combined however with the "fatal qualification".29

(c) Pactum reservati dominii

The vendor, then, who was prepared to grant the purchaser credit, but did not want to rely solely on the purchaser's solvency and honesty, was well advised to make special arrangements and let the purchaser have the object as a precarium tenens or as a conductor. This enabled the latter to use the object even before he had paid the purchase price, while at the same time securing the vendor's position. A traditio did not take place under these circumstances and the vendor therefore retained ownership (and in the case of locatio conductio even possession) of the object sold. "Cum venderem fundum, convenit, ut, donee pecunia omnis persolveretur, certa mercede emptor fundum conductum haberet":30 such an agreement, which had the practical effect of what we would call a reservation of title (without, however, technically constituting it), and which the writers of the ius commune referred to as a pactum reservati dominii,31 was construed by the Roman lawyers not as a single (sale) transaction but as a (cumulative) combination of sale (emptio venditio) and lease (locatio conductio). However, the contract of sale was the dominating feature, whereas the lease served a

28 For details, see Pringsheim, Der Kauf mitfremdem Geld, op. cit., note 13, pp. 81 sqq. For a completely different view of post-classical law (the classical analysis of sale was preserved without major modifications; however, the private contract of sale came to be incorporated into a new social and economic framework (essentially: an authoritarian one) by means of regulations and enactments of a public legal character), cf Voss, op. cit., note 27, pp. 81 sqq., 200 sqq.

Watson, Obligations, p. 63. Tony Honore has recently made an imaginative attempt to reconstruct by what stages Justinian's commissions came to form their view of the matter. According to him, they adopted three different views of the law (all set out somewhere within the Corpus Juris), each at a different stage of their deliberations. Cf. "Sale and the Transfer of Ownership: the Compilers' Point of View", in: Studies in Justinian's Institutes in Memory ofJ.A.C. Thomas (1983), pp. 56 sqq. Honore's analysis provides the starting point for Luig's discussion of the medieval interpretations (and harmonizations) of the authoritative texts {Satura Feenstra, pp. 445 sqq.). But see also Feenstra, (1987) 50 THRHR 130sqq.

lav. D. 19, 2, 21. The problem that arose in this case was that the full price had been paid before the time envisaged by the parties. On this text, see David Daube, "Tenancy of Purchaser (Digest 19, 2, 21)", (1948-50) 10 Cambridge LJ 77 sqq.; idem, "Si . . . tune in D. 19,2, 22 pr.", (1958) 5 RIDA 427 sqq.; J. A.C.Thomas, "Tenancy by Purchaser", (1959) 10 lura 103 sqq.; Rolf Knutel, "Kauf und Pacht bei Abzahlungsgeschaften im romischen Recht", in: Studien im romischen Recht (1973). pp. 37 sqq.

31 Cf. e.g. Gluck, vol. 16, pp. 229 sqq.; Windscheid/ Kipp, § 172, n. 18. Cf. also Gottfried Schiemann, "Uber die Funktion des pactum reservati dominii wahrend der Rezeptionen des romischen Rechts in Italien und Mitteleuropa", (1976) 93 ZSS 161 sqq; Coing, p. 309.

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subordinate function within this composite transaction and was adapted to fit into the framework set by the intention of the parties to effect a contract of sale. Hence, Paulus' generalizing statement "locator non obligatur, conductor obligatur".32 The emptor/conductor is bound, under the actio locati,33 to pay the rent. The actio conducti (ot the emptor/conductor against the venditor/locator), on the other hand, is not applied, for it is overshadowed, and thus superseded, for all practical purposes by the actio empti.34. 3S

II.THE DUTIES OF THE PARTIES

1.The duties of the purchaser

A contract of sale gave rise to two actions, the actio empti (of the purchaser against the vendor) and the actio venditi (which was available to the vendor against the purchaser). Both were mdicia bonae fidei with the following formula:

"Quod Ab Ab de N" N" hommem Stichum emit (vcndidit), quidquid ob earn rcm Nm N"' A" A" dare facere oportct ex fide bona, eius iudex NIT1 Nm A° A° condemnato, si non paret, absolvito.'"36

Which were the respective duties of the parties, enforceable by means of these actions? The purchaser had to pay the purchase price, that is, to transfer the purchase money into the ownership of the vendor: "[E]mptor . . . nummos venditoris facere cogitur."37 From the time of delivery of the object sold the vendor could charge interest on the purchase price ("item usurae pretii post diem traditionis [veniunt in hoc iudicium]");-™ furthermore, under certain circumstances he could claim

32D. 19, 2, 20, 2.

33According to Daube, (1958) 5 UIDA 430. 433, the actio venditi. He regards the text as interpolated.

34For details, see Knutd, Studien, op. cit., note 30, pp. 35 sqq., 51 sqq. Cf. also infra, pp. 530 sqq.

35Another possibility of securing the position of the vendor is intimated in Ulp. D. 43. 26, 20; on which see Anton Memhart, "Dogmengeschichtliches und Dogmatisches zum Eigentumsvorbehalt", (1988) 105 ZSS 729 sqq.: the purchaser receives the object by way of traditio, but the parties agree that such traditio is not to have the effect of transferring ownership; instead, ownership is to pass only with payment of the purchase price. This agreement constitutes a pactum adicctum to the contract of sale (generally on the essence of pacta adiecta, cf. infra, pp. 509 sqq.) and also contains an understanding to the effect that the purchaser be, in the mean time, in the position of a precario tenens.

36Cf. Lenel, HP, p. 299. On the interplay of the actiones empti and venditi, see J. A.C. Thomas, "Sale Actions and other Actions", (1979) 26 RID A 417 sqq.

37 Ulp. D. 19, 1, 11, 2 in fine; d\ also Paul. D. 19, 4, 1 pr.

" Ulp. P. 19, 1, 13. 20; reason: ". . . nam cum re emptor fruatur, aequissimum est eum usuras pretii pendere." Cf. also Pap. vat. 2 and cf. e.g. Giuhano Cervenca, Contribute/ ttUo studio delk usurae c.d. legali vet diritto romano (1969), pp. 13 sqq.; and, most recently, the comprehensive and thorough analysis by Rolf Kniitel, "Zum Nutzungszins'", (1988) 105 ZSS 514 sqq. The rule has been incorporated into the BOB (§ 452: "The purchaser is bound to pay interest on the purchase price trom the date at which the, cjnol laments of the purchased object accrue to him, unless the purchase price is pav^Mt^a-fiXc"d~time*';;tfr<; date at which the emoluments accrue to the purchaser is deterrerfoenm § |^'j(tteliVery/>is far as'mOvables

I [

I [Social s.i^

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reimbursement of expenses,39 the co-operation of the purchaser in implementing the contract,40 etc.

2.The duties of the vendor

(a)Utifrui habere possidereque licere

The vendor, on the other hand, had to deliver the object sold. He was bound to transfer vacuam possessionem,41 i.e. free and unimpeded possession, which the purchaser could enter into without being disturbed by either the vendor or a third party.42 Moreover, he had to maintain the purchaser in undisturbed possession and enjoyment of the object; he had to afford him his habere licere or, as some sources put it more fully, his uti frui habere possidereque licere.43 He was not bound, however, to make the purchaser owner.44 In other words, what he owed was a facere;45 he had to execute the legal act required for transferring ownership (mancipatio, in iure cessio or traditio, as the case may have been),46 but was not responsible for the result—the transfer of ownership—itself. As a consequence of this, the actio empti could not be brought merely on account of the fact that the vendor had not made the purchaser owner of the object sold. As long as he retained his habere licere, the law did not give him any protection.

(b) Transfer of ownership?

For a modern lawyer this must sound both surprising and inequitable. We would regard a rule such as the one contained in § 433 I 1 ("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 appropriate and, indeed, self-evident. Was the Roman law "stiff and primitive" in this regard?47 First of all, we have to remember what has been stated above48 about the structure of the Roman emptio venditio: the contract of sale contained everything that was necessary to transfer ownership except traditio (or mancipatio). Once the object was handed over (or

are concerned)). It has occasionally been criticized as "anomalous" (cf. Franz Leonhard, Besonderes Schuldrecht des BGB (1931), pp. 90 sqq.), but has, more recently, most effectively been defended by Knutel, (1988) 105 ZSS 514 sqq., 538 sqq. For South African law cf. Kerr,

Sale and Lease, pp. 145 sq.

44Cf. e.g. Paul. D. 19, 4, 1 pr.; Ulp. D. 18, 1, 25, 1; Arangio-Ruiz, Compravendita, pp. 149 sqq.

45Kaser, RPrl, p. 551.

46As far as mancipatio is concerned, cf. e.g. Gai. IV, 131 a.

47Schulz, CRL, p. 531.

48Cf. supra, pp. 239 sq.

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mancipated), and provided the vendor himself had been owner, ownership passed:

"Et in primis ipsam rem praestare venditorem oportet, id est tradere quae res, si quidem dominus fuit venditor, facit et emptorem dominum."49

Nothing else was necessary. But if that was so, there was neither room nor necessity for postulating a special duty to make the purchaser owner.50 That would be the automatic consequence of traditio (or mancipatio), which, in turn, the vendor was bound to perform. One may be tempted to ask whether this did not bring an imbalance into the contract: the purchaser had to make the vendor owner of the purchase money,51 whereas the vendor merely had to afford habere licere. This distinction does, however, quite correctly reflect the inherent difference between the object of the sale and the price. Money is available in random quantity, and the purchaser does not have to use specific coins to fulfil his obligation. Thus he can reasonably be expected to pay the price with coins of which he is able to make the vendor owner. The position is different as far as the object of the sale is concerned. The sale of generic goods was unknown in Roman law. It was always a specific thing that had been promised and that was owed, and this thing might in actual fact turn out to belong to a third party. Hence one would only expect the seller to do his best to transfer ownership; he could not be held bound to do what was sometimes impossible: that is actually to make the purchaser owner.52

(c) Practical implications

But did this not cause hardship for the purchaser? If he had known about the seller's lack of title, he did, of course, not deserve any protection. But what if it transpired after the contract of sale had been concluded that the object which had been transferred belonged to a third party? "Nemo plus iuris transferre potest quam ipse haberet" was the rule of Roman law, and acquisition of ownership in good faith on the part of the purchaser was therefore out of the question. That then left the purchaser in a somewhat awkward position:53 as long as his habere licere had not been interfered with, he did not have an action against the vendor. Nor could he resell the object since he was now aware of his lack of title. But, on the one hand, this unsatisfactory state of affairs would normally not persist for a long time. The period for usucaption was short; after the lapse of one year the purchaser acquired

185 sq.; c f. also F . H. La wso n, "T he Passing of Prope rty a nd Risk in Sale — A Com par ative Stud y", ( 19 49) 65 LQ R 364 s q.

M an ge ls im Re chte ", vol . I ( 1902) , p. 1 08.

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ownership by prescription of any movable object he might have bought. The fact that he had subsequently learnt about the seller's lack of title did not matter: mala fides superveniens non nocet. Things were different, however, in the case of res furtivae. Yet, if the vendor had knowingly sold an object that had been stolen, the purchaser obviously had the actio empti to invoke:54 not on account of the fact that the vendor had not made him owner, but because of the vendor's mala fides.

The real problem, therefore, arose only where the object had been stolen and the vendor had not known about that either. But here we are dealing with a situation that does not really allow for a smooth and easy solution: one of two honest parties is ultimately bound to lose out. That this should be the purchaser rather than the vendor may perhaps be justified on the ground that any claim for damages is ultimately based on the fact that a third party — rather than the purchaser—is owner of the object. Clarity in so far can only exist once the third party has been successful with his action against the purchaser. It seems to be at least expedient to resolve this matter before going into the question of damages. ^ Furthermore, the purchaser has undisturbed possession and enjoyment, after all. To allow him, at the same time, to claim damages (on account of the fact that he is not free to dispose of the object) would in turn have placed the vendor in an awkward position. It would hardly have been possible for him to assess the genuineness of the purchaser's intentions to resell or encumber the object of the sale.5''- 57

(d) The liability of the vendor

The vendor, under the actio empti, was generally liable for dolus.5* This is a natural consequence of the fact that the actio empti was a iudicium bonae fidei. Dolus being the opposite of bona fides, it did not necessarily follow that liability was restricted to what we would refer to as dolus in a technical sense, to deliberate and intentional breaches of

^4 Cf. especially Afr. D. 19, 1. 30, 1.

1:1 Significantly enough, § 440 II BGB has adopted this eviction principle, even though the Code recognizes a duty of the vendor to пыкс the purchaser owner; ct. intra, pp. 3()3 sq.

""*'' Or the purchaser's intention to manumit the slave whom he had bought! Ct. Atr.

D.J9. 1. 30, 1.

""Peters. (1979) % ZSS 197 sqq.. who concludes that the Roman approach "imter den

gegebenen Umstanden als rechtspolitisch gut vcrtretbar gewertet werdeu |nmssT' (under the circumstances, has to be evaluated as being easily defensible, from a policy point of view). Cf. also Rabcl. op. eit.. note 53, p. 1 11 , who, despite his criticism of the approach of the Roman lawyers, admits: "Im ubrigen durfte es keine em/ige bczcugtcrmasscn in der Zeit dor let/ten Klassiker entschiedene Streittrage des Gewahrleistungsrcchtes geben, deren Losung dem heutigen Empfinden zuwiderliefe" (On the whole, there is probably no controversial question in the law relating to the vendor's liability which would, by the time of the late classical lawyers, not have found a solution conforming also to the modern sense ot justice and fairness).

^ Ct. supra, pp. 241 sqq. (dolus in contrahendo); ct'. further e.g. Ulp. Г). 18, 4, 2, 5.

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