!!Экзамен зачет 2023 год / The Law of Obligations

contract. At least in some instances, the vendor was liable for culpa too.59

III. THE PASSING OF THE RISK

1.Periculum est emptoris

For the other important consequence of a contract of sale we must turn our attention to Inst. Ill, 23, 3:

"Cum autem emptio et venditio contracta sit . . ., periculum rei venditae statim ad emptorem pertinet, tametsi adhuc ea res emptori tradita non sit."

The text continues to give some illustrations:

"[I]taque si homo mortuus sit vel aliqua parte corporis laesus fuerit, aut aedes totac aut aliqua ex parti incendio consumptae fuerint, aut fundus vi fluminis totus vel aliqua ex parte ablatus sit, sive etiam inundatione aquae aut arboribus turbine deicctis longe minor aut deterior esse coeperit: emptoris damnum est, cui necesse est, licet rem non fuerit nactus, pretium solvere."

This is the famous risk rule, usually crisply expressed in the words "periculum est emptoris". Periculum refers to the chance or possibility that the object of the sale might be lost, destroyed or damaged.m This risk has to be borne as a matter of course by the vendor before the contract of sale is concluded. That it attaches to the purchaser, once ownership had been transferred to him, is equally obvious. In both instances we are dealing with a simple principle: "res perit domino" or "casum sentit dominus".

What we are concerned with in the present context is the period between conclusion of the contract of sale and the transfer of ownership. Here the problem arises whether the loss that has occurred affects the purchaser's obligation to pay the purchase price or not.61 Does this obligation stand, i.e. does the purchaser have to pay, although he does not receive the goods, or receives them in a damaged state (this would be periculum emptoris)? Or is it the vendor who loses out in that he does no longer have the goods (or retains them in a deteriorated state) and will not be able to recover the purchase price (the full purchase price) either (periculum venditoris)? Piles of literature have been penned on this problem in general62 and on the attitude of the

59Proc. D. 18, 1, 68 pr.; Pomp. D. 18, 4, 3; Ulp. D. 19, 1, 13, 16.

60For the meaning of periculum in legal texts generally, see Geoffrey MacCormack, "Periculum", (1979) 96 ZSS 129 sqq.; for the present context, see esp. Emil Seckcl, Ernst Levy, "Die Gefahrtragung beim Kauf im klassischen romischen Recht", (1927) 47 ZSS 248 sqq.; Arangio-Ruiz, Compravendita, pp. 250 sqq.; Max Kaser, "Die actio furti des Verkaufers", (1979) 96 ZSS 111 sqq.

61"Preisgefahr" or "Gegenkistungsgefahr" as opposed to "Sachgefahr" (periculum rei). It is

the former, too, that modern English and French law have in mind when they refer to "risk" or "risque".

62 For a comprehensive comparative investigation, see Gunter Hager, Die Gefahrtragung beim Kauf (1982); for some elegant reflections based on the diversity of modern approaches, see Alan Watson, Legal Transplants (1974), pp. 82 sqq.

Created with novaPDF Printer (www.novaPDF.com)

Roman lawyers towards it in particular.63 As far as Roman law is concerned, it is essentially only one proposition that is above all doubt, and that is that Justinian opted for the first alternative: periculum emptoris. But whether that reflects the position in classical law is not at all easy to decide.

2. The position in classical law

True: there are statements in the Digest which accord fully with Inst. Ill, 23, 3. Paulus, for instance, is quoted as specifically stating ". . .

perfecta emptione periculum ad emptorem respiciet".64 But these statements have all been subjected to extensive textual criticism, and the result has been that some authors have been able to read the exact opposite, namely periculum est venditoris, into the sources.65 Others have not gone that far. Meylan has tried to show that the Roman lawyers applied a very refined scheme and made their decision dependent upon whether a res mancipi or nee mancipi had been the object of the sale and, if it had been a res nee mancipi, whether it had been either lost or totally destroyed, or whether it had merely been damaged.66 Rabel, on the other hand, came to the conclusion that the Roman lawyers decided without any principle at all and allocated the risk, according to the merits of each case, sometimes to the vendor, sometimes to the purchaser.67 Today the opinion prevails that periculum est emptoris was the rule not only in Justinianic but also in classical law.68 Methodically, one has abandoned the shifting sands of

63 For a recent survey of the literature, see Wolfgang Ernst, Das klassische romische Recht der Gefahrtragung beim Kauf: Periculum est emptoris, (unpublished Dr. iur. thesis, Bonn, 1981) (for an abbreviated version, see idem, "Periculum est emptoris", (1982) 99 ZSS 216 sqq.).

64D. 18, 6, 8 pr.

65For example Franz Haymann, "Textkritische Studien zum romischen Obligationenrecht, Periculum est emptoris", (1920)41 ZSS 44 sqq.; idem, "Zur Klassizitat des penculum est emptoris", (1928) 48 ZSS 314 sqq.; Emilio Betti, "Zum Problem der Gefahrtragung bei zweiseitig verpflichtenden Vertragen", (1965) 82 ZSS 1 sqq. Cf. Jacobus Cuiacius, "Ad Africanum Tractatus VIII", Ad L. si fundus 33. loc. et cond., in: Opera Onmia, vol. I (Venetris, 1768).

66Philippe Meylan, "Inst. Ill, 23, §§ 3 et 3a et Punification du regime des risques dans le

contrat de vente par Justinien", in: Atti Verona, vol. Il l (1951), pp. 387 sqq.; idem, "Paul. O. 21, 2, 11 pr. et la question des risques dans le contrat de vente", (1949) 3 RID A 193 sqq.; idem, "Periculum est emptoris", in: Festschrift fur Theo Guhl (1950), pp. 9 sqq.; idem, "Fr. Vat. 16 et la question des risques dans le contrat de vente", (1950) 1 lura 253 sqq.

67 Ernst Rabel, "Gefahrtragung beim Kauf", (1921) 42 ZSS 543 sqq. Cf. also Geoffrey MacCormack, "Alfenus Varus and the Law of Risk in Sate", (1985) 101 LQR 573 sqq., who argues that the law developed on a casuistic ad hoc basis. While, he says, the "trend" of the late classical law favoured perfection of the contract as the criterion for the passing of risk, Alfenus Varus favoured an approach under which the risk remained with the seller until traditio (cf. Paul. D. 18, 6, 13 and 15; but why did Paul —in whose days the law was periculum est emptoris — take the trouble to record Alfenus' decisions? I am not convinced by the explanations offered by MacCormack on p. 576).

' Emil Seckel, Ernst Levy, "Die Gefahrtragung beim Kauf im klassischen romischen Recht", (1927) 47 ZSS 117 sqq.; H.R. Hoetink, Periculum est emptoris (1928); De Zulueta, Sale, pp. 30 sqq.; Jors/Kunkel/Wenger, pp. 228 sqq.; Schulz, CRL, pp. 532 sq. ; Arangio-Ruiz, Cotnpravendita, pp. 250 sqq.; Benohr, Synallagma, pp. 86 sqq.; Kaser, RPr I,

Created with novaPDF Printer (www.novaPDF.com)

far-reaching interpolation allegations and is therefore able to approach the classical texts from a more consolidated basis. Furthermore, one cannot help suspecting that at least some of the extreme opponents of the classicity of periculum est emptoris tended to approach the sources with preconceived ideas. Haymann, for instance, regarded this rule as a stain on the badge of honour of the Roman lawyers which he set out to efface.69 This sounds like arguing on the pattern of what ought not to be, cannot be; ". . . dass nicht sein kann, was nicht sein darf."70 It is true, however, that periculum est emptoris has often been regarded as a strange and anomalous peculiarity of Roman law. Pufendorf criticized it as being in conflict with "res perit domino".71 This it is indeed, for the vendor, at the time when the goods are destroyed or damaged, has not yet transferred ownership and even retains possession. Would it therefore not be much more in accordance with natural justice to let the loss lie where it has struck, rather than to shift it to the purchaser who has, as yet, neither legal nor factual control over what had been sold? Periculum est emptoris continued to be applied in practice, but some of the attempts to provide a rational justification for this rule sound rather forced and awkward: "illustrationjsj of the fertility of the Teutonic intellect when in search of a reason", as Williston72 said of the theories of a man with the rather inauspicious name of Goose.73

3. The ambit of the rule

Before being able to evaluate these criticisms, we first have to define more exactly the ambit of the rule. The risk passed only once the salewas perfect, emptione perfecta. Hence: "Necessario sciendum est, quando perfecta sit emptio: tune emm sciemus, cuius periculum sit."74 Normally, perfection and conclusion of the sale coincided. "[E]t si id

pp. 552 sq.; Honsell/Mayer-Maly/Selb, pp. 3(19 sq.; Imre Molnar, '"Periculum emptoris' im romischen Rccht der klassischen Penode", in: Sodalitas, Scritti in onore di Antonio Gitaviuo, vol. V (1984), pp. 2227 sqq.; Frank Peters, "Periculum est emptoris", in: Iuris Professio, Fests>abe fur Max Kaser (1986), pp. 221 sqq.

''' Haymann. (1920) 41 ZSS 48 sq. ("[Unsere Aufgabe muss es sein, diej Linieti des klassischen Rechts . . . in Hirer bewunderungswiirdigen Hinfachheit \md Folgerichtigkeit wiederherzustelieti und damit zugleich einen fleck von dem wissenschaftlichen Ehrenschild jencr grosseu, unerreichbarcn Meisler endgiiltig auszutilgen" (It has to be our task to reconstruct the outlines of classical law in their admirable simplicity and consistency and we must at the same time aim at wiping out, once and for all. a blot on the badge of honour of those great and unrivalled masters)).

7|< Christian Morgcnstern, "Die unmogliche Tatsache". in: Gesammelte Werke (1967). pp. 262 sq.

71 De jure naturae et gentium, Lib. V, Cap. V, 3. Cf. also Grotius, De jure belli ac pads, Lib. II, Cap. XII, XV, 1.

'" Samuel Williston, The Law Governing Sales of Goods at Common Law and Under the Un ifo rm Sales A ct, vol. II ( 1948) , § 308. Cf. also the same author. "T he Risk of Loss Afte r an

E xe cutor y Cont ra ct o f S ale in the Civil L aw ", ( 18 9596) 9 H a rv a rd LR 72 sqq.

73 "Z ur Le hre vo m cas us ", ( 1868) 9 J h jb 197 sqq.

74 Paul. D. 18, 6, 8 pr.

Created with novaPDF Printer (www.novaPDF.com)

quod venicnt apparcat quid quale quantum sit, sit et prctium, ct pure venit, perfecta cst emptio."7S As soon as there was agreement about the exact object of the sale and about the price, and the sale had been concluded unconditionally, the obligations came into existence; nothing remained to be done except to discharge them. Under these circumstances, emptio was perfecta. Matters were different where the sale was not pura but had been concluded subject to a suspensive condition. Here the effects ot the contract were suspended, and the mutual obligations came into existence only once the condition had been fulfilled. Only then could the sale be said to be complete (perfecta). Condicione pendente, therefore, the risk remained with the seller.7'1 The same applied where generic goods from an identified source were sold.77 The contract was not complete until the objects of the sale had been identified, i.e. tor instance, if "ten amphorae ot wine from my cellar" had been sold, until the amphorae had been put aside for that transaction.?H There were some further instances of such a postponement of the transfer of risk because the sale was not yet complete.79 The most interesting one relates to an economically very important type of transaction, the sale ot wine.""

4. Excursus: the sale of wine

Wine was either sold out of vats (dolia, hence vinum dohare) or bottled in amphorae (vinum amphoanum). Vinum doliare was usually new wine; while it was kept in doliis, it went through the fermentation process. These dolia were made from clay; they were pitched on the

75 Paul. П. 18. 6, H pr.

"' Perhaps only the mk ot loss or total destruction, not of deterioration: ct. Pap. vat. 16; Paul. D. 18, 6. 8 pr. in fine. The question is controversial; sec e.g. Seckel/Levy, (1927) 47 ZSS 154 sqq., 173 sqq.; Pjul Kruckmann. "Einige Randfragen ;um periculuni emptons". (1939) 59 ZSS 18 sqq.; Arangio-Ruiz. Compravt'iidita. pp. 261) sqq.; Ernst, op. tit., note 63. pp. 35 sqq. As to the question whether a sale subject to a dies incertus was regarded as perfect, sec Alan Kodger. "Emptio perfecta Revisited: A Study of Digest 18, 6. 8, 1", (1982) 50 TU 337 sqq.

'' CC supra, p. 236.

"~K Pap. vat. 16; Gai. I"). 18, I, 75. 7: Paul. D. 18. 6. 5; for details, sec Seckel/Levy. (1927) 47 ZSS 189 sqq.; Ernst, op. ci t . . note 63, pp. 61 sqq.

7<J For details Seckel/Levy, (1927) 47 ZSS 214 sqq.

M" On wine-growing, wine trade and wine-drinking in Rome. ct. generally A. Henderson. The History of Ancient and Modem Wines (1824); Joachim Marquardt/A. Mau. D,is Privatleben der Router (2nd ed.. 1886), pp. 443 sqq.; Friednch von Basscrmann-Jordan. Ckschichte des Weinbaus (2nd ed.. 1923). vol. I. pp. 39 sqq ., vol. I I, pp. 1102 sq.; Charles Seltmjnn, Wine in the Ancient World (1957), pp. 129 sqq.; ct., too, Etiennc, Pompeii, pp. 141 sqq.; Bruce W. Frier, "Roman Law and the Wine Trade: the Problem of'Vinegar Sold As Wine'". (1983) 100 ZSS 257 sqq. Frier points out that, on one estimate, the residents ot Rome drank more than one hundred million litres of wine per year. The distribution ot so vast a quantity "required a sprawling network ot merchants, called vinarii . . . Fortunes were made and lost quickly in the wine trade, and the ethical standards ot the traders were reputedly none too high" (p. 258).

Created with novaPDF Printer (www.novaPDF.com)

inside and could contain more than 1 000 ˆ .S1 They were usually sunk into the ground of the cella vinaria;82 their openings were closed with clay lids. Older and better wine was poured into and kept in amphorae,83 clay vessels with a volume of about 26 t.%A Unlike the dolia, amphorae had a narrow neck which could be corked up.85 Such corks seem to have worked very well; we are told by Pliny, for instance, that under the Principate wine from the famous vintage of 121 B.C. (the so-called Opimianian wine) was still available.86 The same cannot be said of the clay lids which were put on the dolia; here one could not always prevent the air from entering and hence there was a danger of the wine turning sour or musty. "Proprium autem inter liquores vino mucescere aut in acetum verti, extantque medicinae volumina."87 Acor and mucor was a specific risk connected with the purchase of wine;88 nevertheless, this risk normally passed to the purchaser with the conclusion of the sale, in accordance with emptione perfecta periculum est emptoris. There was, however, one way for the purchaser to avoid this consequence:

"Si vinum venditum acuerit vel quid aliud vicii sustinuerit, emptoris erit damnum, quemadmodum si vinum esset effusum vel vasis contusis vel qua alia ex causa sed si venditor se periculo subiecit, in id tempus pcriculum sustinebit, quoad se subiecit. "89

The purchaser could buy the wine subject to his approval and make perfection of the sale dependent upon degustatio.90 This seems to have been very common for the sale of vinum doliare.91 Cato recommended for the standard transaction a period of three days within which degustatio had to occur: ". . . in triduo proximo viri boni arbitratu degustato; si non ita fecerit, vinum pro degustato erit."92 Perhaps the

81 Cf. e.g. Hessel, Die Weinveredelungsmethoden des Altertums verglichen mit denen der hetitigen Zeit (1856), pp. 54 sqq.; Mau, RE, vol. V (1903), col. 1283 sqq. One can get a good idea of the size of these dolia if one remembers that in Athens paupers (or a philosopher such as Diogenes) could live in them.

Bassermann-Jordan, op. ci t . , note 80, vol. II, pp. 716 sqq.; Marquardt/Mau, op. cit., note 80, p. 462.

86Plinius Secundus, Historia naturalis. Lib. XIV, 14, 94.

87Plinius, op. cit., note 86, Lib. XIV, 20, 131.

88For details, e.g. Frier, (1983) 100 ZSS 258 sq.

89Ulp. D. 18, 6, 1 pr.; Ulp. D. 18, 6, 1 and 18, 6, 4 provide a comprehensive treatment of the problems relating to the sale of wine. Cf. further Gai. D. 18, 6, 16; Pap. vat. 16; and the discussion by Seckel/Levy, (1927) 47 ZSS 204 sqq.; R. Yaron, "Sale ofWine", in: Studies in the Roman Law of Sale in memory of Francis de Zulueta (1959), pp. 71 sqq.; Wolf, Error, pp. 128 sqq.; Manfred Harder, "Weinkauf und Wcinprobe im Romischen Recht", in: Recht und Wirtschaft in Geschichte und Gegenwart, FestschriftfiirJohannes Barmann (1975), pp. 17 sqq.; Frier, (1983) 100 ZSS 278 sqq.; Molnar, Scritti Guarino, vol. V, pp. 2236 sqq.; Peters,

Festgabe Kaser, pp. 225 sqq.

If he found the wine to be musty or sour, he could rescind the contract; Paul. D. 18, 1, 34, 5: ". . . gustus cnim ad hoc proficit, ut improbare liceat."

91Cf. Ulp. D. 18, 6, 4, 1: ". . . difficile autem cst. ut quisquam sic emat, ut nc degustet."

92De agri culture, CLVII, 148.

Created with novaPDF Printer (www.novaPDF.com)

requirement of arbitratus bom viri was dropped in classical times, for, as Yaron points out, "one wishes to buy wine according to one's own |udgement. and not according to that ot some impartial vir bonus".'1' It has often been argued that an agreement regarding degustatio was read into any contract of sale concerning vinum dohare, so that the risk of acor and mucor was always on the vendor until such tasting had taken place. In the case of vinum amphorarium, however, the right ot degustatio had to be specifically reserved.'14 This opinion hinges on the assumption that Ulpianus in 1). 18, 6, 1 pr. originally referred to vinum amphorarium, and that only the compilers generalized tins statement by way of interpolation. It seems preferable, however, to accept the text as it stands. Perhaps it referred to vinum doliare only, for an agreement concerning degustatio could in any event not have helped the purchaser very much in the case of vinum amphorarium.''"' He would have been confined to some sort of spot check. But whether the wine in one amphora had or had not turned sour or musty did not tell the purchaser much about the other amphorae; everything depended entirely on whether each individual amphora had been properly corked.'"'

Sometimes wine (or grain or oil. ctc.)'r was bought per avcrsionem,''* or uno pretio:w a lump sum was agreed upon tor a whole (unspecified) quantity ("Ktiuj in Bait<ch und Bogat").h4> On these terms, the purchaser could buy, for instance, a large quantity ot cheap, often adulterated wine, which he was then able to process in such a way that it could be used as a drink for his slaves.1'4 Such transactions were, of course, not normally subject to degustatio and were perfecta the moment the contract had been concluded. Where, on the other hand, the price was determined by quantity (so and so much per unit), and where the exact sum therefore still had to be established adnumerando. admetiendo or adpendendo, the position-—according to the prevailing Sabinian opinion —was different:

'"Sabimi4 ct Cassiui rune perhci emptioneni cxistiniant. cum adnumerata adniens;)

.ulpensave suit, quia vcnduio quasi sub Ьлс condicione videtur fieri, ut in smgulos

'" Studies tie /Aiheta. p. 75; but ьсс Al:m Watson. \V)W) 50JRS 255; Frier. (19S3) Inn ZSS 281 sq.: "improbare" iPaul 1). IS. 1. 34. 5) implies л judgment ol fact; what nutrers is not whetber rbe purchaser personally likes the wine, but whether, due to organic deterioration, the wine is no longer merchantable. On the arbitnuin boni viri in general, see Von, Obblitfiiziom, vol. I. 1. pp. 1W sqq.

1(4 Cf. e.g. SeekelLevy, (1927) 47 ZSS 21Ц sqq.; K.iscr. RPr I, p. 55}. ь

Harder, l-eststhnft Штпшн. pp. 21) sq.

'"' Wolf, Lrror. p. 131. n. 73. l |: c. 4. 4S. 2. 2.

w Ulp. I ). 18, 6. 4. I; Mod. IX I K , 1. 62. 2. 'n Cjii. 1). 18, 1, 35, 6.

"'" Usually in the ease of vinum doliare. but this type of transaction was also possible with regard to vitunn amphoarium: cf. С 4, 48, 2. 1: "Cuni autem imiverMini, quod in horreis er.it positLim venibse sine memura. . . ." Cf. e.g. Anmgio-Rui/. Conipvaveihiiia. pp. 257 s qq . ; the diHerent types ot sal e of wine are listed by Frier, (1983) l | l ( < ZSS 276 sq.

Cf. Paul Thielscher. Du Marcus Cato Bi'lehnui^ iibcr die I.aiidivirtsJiitjt (1963), pp. 297 sq.

Created with novaPDF Printer (www.novaPDF.com)

metretas aut in singulos modios quos quasve admensus eris, aut in singulas libras quas adpenderis, aut in singula corpora quae adnumeraveris."102

In other words, the risk passed only when the purchase price had been specified; prior to that, an essential element for a valid contract of sale was lacking.

5. The concept of periculum

There was another factor which even further limited the scope of application of the risk rule, namely a very narrow understanding of the central concept of periculum. Of course, it did not refer to any incidents caused by the vendor's negligence. These had to be borne by the vendor himself. But the lawyers went one important step further. In D. 18, 6, 3 we read:

"Custodiam autem venditor talcm praestare dcbct, quam praestant hi quibus res commodata esr, ut diligentiam praestet exactiorem, quam in suis rebus adhibcrct."

After conclusion of the contract of sale, but before the object of sale has been handed over, the vendor is in the same position with regard to that object as a borrower. He is liable not only for negligence (be it according to the standard of the diligens paterfamilias or that of diligentia quam in suis) but for custodia.103 Or, to state the same thing from a different angle: it was only the risk of loss by way of vis maior (periculum vis maioris) which passed, emptione perfecta, to the buyer. Only if the object sold had been lost, destroyed or damaged due to an event which nobody—neither buyer, nor seller, nor the most ideal custodian—could have prevented, did the purchaser have to pay the purchase price without receiving anything; in cases of casus minor, however, the vendor was responsible for damages due to nonperformance. The two obligations could, of course, be set off against each other; the purchaser's compensation claim was then limited, for all practical intents and purposes, to the difference by which his interesse exceeded the (as yet unpaid) purchase price.104

102 Gai. D. 18, 1, 35, 5. Cf. Seckel/Levy, (1927) 47 ZSS 179 sqq.; Arangio-Ruiz, Compravendita, pp. 271 sqq.; J.A.C. Thomas, "Marginalia on certum prerium", (1967) 35 TR 82 sqq.; Peters, Festgabe Kaser, pp. 226 sqq.

U"C(. also Paul. D. 19. 1, 36; Gai. D. 18, 6, 2, 1; Ulp. D. 18, 6, 4, 1 et al.; further Wolfgang Kunkel. "Diligentia", (1925) 45 ZSS 278 sqq.; Hoetmk. op. cit., note 68, pp. 49 sqq.; Arangio-Ruiz, Compravetidita, pp. 247 sqq.; Schulz, CRL, p. 533; Manlio Sargenti, "Problemi della responsabilita contrattuale", (1954) 20 SDH1 200 sqq.; Max Kaser, "Die actio furti des Verkaufers", (1979) 96 ZSS 105 sqq. The question is disputed. For a contrary view (custodia had to be specifically agreed upon), see Betti, Istituzioni, vol. II, 1, pp. 372 sq., 416 sqq.

104 In case of theft, the vendor also had to "cede" to the purchaser his (reipersecutary and penal—as to this terminology cf. infra, pp. 918 sqq.) actions: condictio ex causa furtiva, actio furti and rei vindicatio; alternatively, if he had already brought one of these actions, he had to hand over what he had received (usually called "stellvertretendes commodum"). Cf. e.g. Ulp. D. 47, 2, 14 pr.: "Eum qui emit, si non tradita est ei res, furti actionem non habere, sed adhuc venditoris esse hanc actionem Celsus scripsit, mandarc eum plane oportebit emptori furti actionem et condictionem et vindicationem, et si quid ex his actiombus fuerit

Created with novaPDF Printer (www.novaPDF.com)

6. Afr. D. 19, 2, 33 et al.: evidence against periculum emptoris?

It is submitted that on this basis even those texts which have often been taken to provide evidence against periculum emptoris can be satisfactorily explained. Thus, for instance, Africanus seems to allocate the risk of expropriation (occurring after conclusion of the sale, but before transfer) to the vendor:

". . . nam et si vendideris mihi fundum isque priusquam vacuus traderetur publicatus fuerit, tenearis ex empto: quod hactenus verum erit, ut pretium restituas, non ut etiam id praestes, si quid pluris mea intersit eum vacuum mihi tradi."105

It is likely, however, that this decision was based on the fact that the vendor himself did not yet have vacua possessio when the expropriation (probably taken to be a case of vis maior) occurred. At that time, therefore, the contract of sale had not yet been "perfecta" and hence the risk had not passed to the purchaser.106 Paul. D. 21, 2, 11 pr., too, deals with expropriation:

"Lucius Titius praedia in Germania trans Renum emit et partem pretii intulit: cum in residuam quantitatem heres emptoris conveniretur, quaestionem rettulit dicens has possessiones ex praecepto principali partim distractas, partim veteranis in praemia adsignatas: quaero, an huius rei periculum ad venditorem pertinere possit. Paulus respondit futuros casus evictionis post contractam emptionem ad venditorem non pertinere et ideo secundum ea quae proponuntur pretium praediorum peti posse."

It is fairly obvious that the property was expropriated at a time when traditio had already taken place.107 One might therefore be tempted to argue that, if (as Paulus decides) the purchaser has to pay (the remainder of) the purchase price in this case, he would—e contrario—not have been obliged to do so, had the expropriation occurred before traditio.108 But Paulus does not even mention traditio, which leads one to believe that this factor cannot really have been relevant for his decision. Thus,

consecutus, id praestare eum cmptori oportebit. . ."; also Gai. D. 18, 1, 35, 4; Inst, III, 23, 3 a. Reason: It would not have been in accordance with bona fides if the vendor were allowed to claim the purchase price and at the same time to retain what was still left of the object (albeit in the form of a substitute): cf. esp. Seckel/Levy, (1927) 47 ZSS 147 sq. The purchaser thus had a chance (under the rei vindicatio) to get the object restored to him once it had turned up again. Of course, if that happened (or if the purchaser successfully brought one of the other claims that had been ceded to him), he had to pay back (part of the) damages that he might have received from the vendor in the meantime. For details, see Manfred Harder, "Commodum eius esse debet, cuius periculum est", in: Festschrift jur Max Kaser (1976), pp. 351 sqq.; Kaser, (1979) 96 ZSS 115 sqq.

105D. 19, 2, 33; d. e.g. Haymann, (1928) 48 ZSS 406 sqq.

106Cf. e.g. Seckel/Levy, (1927) 47 ZSS 219 sqq.; Kaser, RPr I, p. 553. For a different interpretation, see Ernst, op. cit., note 63, pp. 8 sqq. For an overview of the discussion of

this fragment in the literature of the ius commune, see Gliick, vol. 17, pp. 135 sqq.

11)7 C{. e.g. Haymann, (1920) 41 ZSS 140; Seckel/Levy, (1927) 47 ZSS 231; Meylan, (1949) 3 RIDA 195, 207; Jors/Kunkel/Wenger, p. 229, n. 11.

108 Cf. Emilio Betti, "'Periculum'. Problema del rischio contrattuale in diritto romano classico e giustimaneo", in: Studi in onore di Pietro de Francisci, vol. I (1956), pp. 183 sq.

Created with novaPDF Printer (www.novaPDF.com)

whether traditio had taken place or not, the purchaser was obliged to pay.llW

Another type of action by the public authorities is at the heart of the following two fragments:

"Lectos emptos aedihs. cum in via publica positi essent. concidit: si traditi essent cm p tori aut per cum stctisse.t quo minus tradcrcntur, emptons penculum esse placet. . . . Quod si neque traditi csscnt ncquc einptor m mora tuisser quo minus tradcrcntur, venditons periculum crit."""

The aedil had smashed to pieces some beds which had been sold and which were now standing m the street. Being responsible (inter alia) for the security of the Roman streets,1" he could not tolerate unwieldy objects lying around and obstructing orderly trathc.Mi According to Paulus, the purchaser had to bear the loss if the beds had already been handed over to him (for then he had become their owner) or it he had been responsible tor the fact that this transfer had not yet taken place (mora creditoris; thus, the parties might have agreed that the purchaser should come and collect the beds; when, however, he did not turn up at the right time, the vendor — usually hard pressed tor space in his small shop or store-room—put them in the street). Otherwise, the risk was on the vendor. This can be reconciled with pcriculum est emptoris only if the aedil's action was not regarded as vis maior. A general proposition of this kind would be very doubtful; in the present context, however, such an evaluation seems reasonable and convincing.''s Irrespective of whether the vendor actually knew what happened to the beds or not, irrespective of whether the aedil's intervention as such was one "cui resisti 11011 potest": the incident had its origin within the vendor's sphere of influence. If he or his employees put the beds in the street, he increased the risk that something might happen to them. Such an action was not m accordance with his duty of custodiam praestare. He was thus responsible for the consequences on account of his custodia liability, and that seems to be the reason why Paulus does not allocate the risk to the purchaser.

"'" Seckel.Levy. (1927) 47 ZSS 231 sq.; Benohr, Symilh^Hid. p. SH. Cf. also Mcyl.ni. :J949) 3 RIDA 197 sqq.. who. however, goes on to argue that in case oi res пес m.mcipi (pracdia in Gennania trans Renum!) the nsk passes with the due date of the purchase price (dies pretn soKcndij. I hs theory, while providing an ingenious explanation for Paul. I). 21. 2, I I . is based on the mistaken assumption that transfer of ownership was, according to classical law, always dependent on payment ot the purchase price. A curious explanation is offered by Voet, Comitwntiiriiis aJ I\md<\'liii, Lib. XVIII, Tit. VI. 1.

Paul. Г). I K. (,, 13/15 pr.

For details, sec Mommsen, Shhit-rccht, vol. II. 3, pp. 486 sqq.

The Roman streets were ver\ narrow; tor я lively account, see Carcopmo. pp. 57 sqq. In our case the aedil seems to have acted withm his powers; argumentum e contrario troni lul. П. IS. 6, 14.

1 1 3 Cluck, vol. 17, pp. 143 s q q . ; Seckel/Lcw. (1927) 47 ZSS 244 sqq.; Kaser, RPv 1. p. 533, n. 73; Theo Maycr-Maly, "Haftung aus Miete nach Staatsunreeht". (1957) 74 ZSS 364 sqq.; Benohr. Sytuilhigiua, pp. SS sq.; tor a different interpretation, see. for instance, Kruckmann, (1У40) 6U ZSS 65 sqq.; MacCormack, (1985) 101 ZSS 573 sqq.

Created with novaPDF Printer (www.novaPDF.com)

7. Evaluation of the Roman risk rule

Proper consideration of its application in practice may well make us differ from those who regard the risk rule as an inequitable anomaly. 'I rue, we are dealing with a deviation from res perit domino. Also, as a matter of history, the origin of the rule probably lies in the cash sale of the ancient Roman law.'u Where every sale is executed immediately, both risk and ownership are bound to pass at one and the same time, namely when the contract is concluded. It was only with the rise of the fully executory contract that a divergence became possible. Whilst the transfer of the object (and with it the final act necessary for the transfer of ownership) could be postponed to a later date, one continued to think in terms of the cash sale pattern in some other respects, for instance with regard to the question of risk. But this does not mean that we are here dealing, as far as classical law is concerned, with an inappropriate atavism. Periculum est emptons is a reasonable solution to the difficult problem of risk allocation.111' corresponding entirely to the underlying economic interest structure. As between the parties, the object of the sale belongs (in an untechmcal sense) to the purchaser.11'' It has become part of his economic sphere. Hence the duty, on the part of the purchaser, to reimburse the vendor for the expenses necessary tor the maintenance of the thing whilst still m his possession;"7 hence the right of the purchaser to claim any accessions to or fruits of the thing which arose since completion (i.e. normally conclusion) of the sa le.l l H

1 1 4 Cf. e.g. Kaser, RPvl, p. 547: idem. (1479) % ZSS 114 s4.; Dockland ■■Stein, p. 4H7; Honsell/M;i\er-Mal\ /Sclb, p. 31U; Watson. Ohli^uions, p. (>'Л It was not imported only in the late classical period under the influence ot Hellenistic law, as Haymann. (1УЗО) 41 ZSS 172 sqq. and Bern. (1%5) 82 ZSS 12 would have i t .

Schul/, (^RL, p. 533 even calls it "an ideal solution"'. See, too, De Zulueta. .S'j/e. p. 35; Nicholas, Introduction, p. 18П; Ernst, op. eit.. note 63. pp. 73 sqq.; Stetan Weyand. "Kaufverstamlnis nud Verkauferhattung un klassischcni rdmiseheu Recht", (1983) 51 ! R 246 s4 q.; Peters, Irstgah' Kd<n. pp. 221 ыщ.; MaeCormack, (1985) 101 I.QR 574 (more "sophisticated").

Cf. already Wmdscheid/Kipp. § 321. 3. as translated In Lawson. (1949) 46 LQR 3(>1: "The reason tor this exceptional provision is to be found in the tact that the declaration ot intention to sell is a declaration ot intention to alienate. That means that its content is not so much that the seller binds himself to surrender the thing sold, as rather that he actually surrenders it. In consequence ot this characteristic ot the declaration ot intention to sell, the thing sold is treated by the law, so tar as the relation ot the seller to the buyer is concerned, as though it had already been severed trom the seller's estate and passed into the buyer's." Cf. also § 390.

1' Cf. supra, pp. 277 sq.

""Paul. I). 22. 1. ?>H. 7-H; Pomp. IX 19. 1. 3. 1; С 4. 49. 13 ami 1 U (Oioel.): Ulp. 1). 19. I. 13. 13. For details, see V'oet. CoiiuneiiLinio ad P.uidedits. I lb. XVIII. l i t . VI. 9; (iluck.

vol. 17. pp. 189 s4q.: and esp. Wey.ind. (1983) 51 Г И 229 sqq. Cf. also Paul. I). 18. 6, 7 pr.: "Id. quod post cmptionem inndo aecessir per .ilhivionem vel pent, ad emptoris eommodum incommodumque pertmet: n.im et si totus ager post emptionem rlummc oeeupatus esset, penculutn essct emptoris: sic igitur et comniodum eius essc debet". and hut. I I I . 23. 3 a. where [he reason for this is crisply expressed m the rule "nam et connnodum ешь esse debet.

cuius peneulum est". This ride also appears among the regulae liiri s antiqui in P.nil. IX 5n, 17. 10 ("Sccundum naturam est commoda cuiusque rei cum sequi. quern scquenrur incomnioda"). For details, see G.CJ.J. van den Iiergh. "Qui habet commoda tere debet

Created with novaPDF Printer (www.novaPDF.com)