!!Экзамен зачет 2023 год / The Law of Obligations

The purchaser may. furthermore, resell the thing; the vendor can't (unless he is prepared to commit a breach of contract). Thus it is the purchaser who benefits Irom a rise, but who also takes the risk of a (all in the market price.

The contract of sale embodies the will of the parties that the object of the sale shall belong to the purchaser, and we have seen119 that in this regard it was more than a merely executory agreement. It contained the will to transfer ownership and it was only the act of traditio that was postponed for the time being. Ex fide bona, therefore, what the parties were aiming at was to be given effect to as soon and as far as possible. Under these circumstances, a regime of periculum est emptoris is not unnatural. It must be emphasized again that risk in this context referred only to events which did not originate in the vendor's sphere and which had nothing to do with the fact that the vendor still kept the object of the sale in his possession.

8. Reception and rejection of periculum est emptoris

If the reception and continued application of a Roman rule in later

phases of legal history provides some indication of its soundness, the record of periculum est emptoris is not at all dismal.1211 True it is that

both the writers and the legislators of the law7 of the Age of Reason were hostile to it.121 So were the fathers of the BGB.122 They did not see

a rational justification for the rule and considered it to be in conflict with the nature and equity of the bilateral contract of sale. Hence, § 446 I 1 BGB provides: "On the delivery of the thing sold the risk of accidental destruction and accidental deterioration passes to the purchaser."'23 On the other hand, in art. 185 I OR we find a codified version of the Roman risk rule, and in the European ius commune it applied until the days of the pandectists.124

onera", in: Hlorcs Icgum H.J. Sdwttnna oblali (1971), pp. 21 sqq.; Manfred Harder. "Commodum eius esse debet. amis periculum est'": in: l:estsdirifi fiir Max Ка.чт (1976). pp. 362 sqq.

"' Cf. supra, pp. 239 sq.

J I he following comments reter only to the sale of individual things, not to emptio

generis.

121 Cf. supra, note 71 and §§ 95. 100 I 11; 364 I 5 PrALR; cf. also §§ 1064, 1048. 1051 ABGB. Critical ot "periculum est emptoris" in his comparative evaluation, also Hager, op.

cit., note 62. pp. 66 sqq.

122 "Motive", in: Mtigdiiti, vol. II. pp. 113 sq.

'-■ § 446 I 2 BGB carries on to state that "after delivery the emoluments accrue to the purchaser, and he bears the burdens attached to the thing". This is in line with the maxim "sccundum naturani est commoda cuiusque re cum scqui, quem sequentur incommoda" (Paul. D. 50. 17. ID).

'" Cf. e.g. Vinnius. Institutions, Lib. I l l , Tit. XXIV. 3: Voet. Commentarius ad Pandectas, Lib. XVIII, Tit. VI; Pornier, Traitc du contra! de vente, п. ЗОЙ: Grotius, Itileidint;, II I, X! V, 34; Gluck, vol. 17. pp. 126 sqq.; Windscheid/'Kipp, § 390; Vangerow, Pandcktcti. § 635; Bechmann, vol. II. pp. 99 sqq.; vol. Ill, 1, pp. 171 sqq.

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In the South African variant of the ius commune it still applies today.125 That is all the more remarkable, as periculum emptoris is no longer restricted to cases of vis maior, but refers to instances of accidental destruction or deterioration at large. Justinian, it will be remembered, abolished the concept of custodia liability, replacing it with culpa (in custodiendo).126 In the present context this had the effect of a not inconsiderable extension of the risk rule. The French code civil retains "emptione perfecta periculum est emptoris" too; however, it makes not only the passing of the risk but also the transfer of ownership dependent upon the conclusion of the contract of sale.127 Like the BOB, therefore, it tries to reconcile the passing of the risk with the overriding principle ot res pent domino; but whereas the one code brings about this reconciliation on the level of the contract of sale, the other one detaches both transfer of ownership and passing of risk from the obligatory contract.

English law is very similar to French: the purchaser becomes owner with the conclusion of the contract ot sale;12* at the same time, the passing of the risk takes place.129 As far as this latter consequence is concerned, the position is therefore not different to that in Roman law, and Lord Ellenborough, to mention but one example, might just as well have applied emptione perfecta periculum est emptoris when he said in the case of Rttgg v. A4im'ti:l?i "

". . . and therefore according to the case of. . ., every thing having been done by the sellers, which lay upon them to perform, in order to put the goods in a deliverable state in the place trom whence they were to be taken by the buyers, the goods remained there at the risk ot the latter. But with respect to the other ten casks [sc: of turpentine], as the tilling them up according to the contract remained to be done by the sellers, the property did not pass to the buyers, and therefore they are not bound to pay for them."

l2* Cf. Poppc, Sclumlwffand Gimery i>. Mo-aithJ & Co. (1879) 9 Buch 91; Taylor & Co. v. Mackie. Ditnti tr Co. (1879) 9 Buch 166; for details, sec Dc Wet en Yeats, pp. 308 sqq.; cf. also the acute analysis by M.A.K. Lambins, (1984) 101 SALJ 656 sqq. For Scotland, see Sloan's Dairies Ltd.'v. Glasgow Corporation 1477 SC 223 at 238'and A.D.M. Forte, "Must a Purchaser Buy Charred Remains?—An Analysis ot the Passing ot Risk on Civilian Principles", (1984) 19 The Irish jurist 1 sqq. (who himself is critical of the rule: pp. 9 sqq.).

126Cf. supra, pp. 192 sq. and, in the present context, lust. III. 23, 3 a. dealing with the sale of slaves, for which transaction special rules seem to have applied already in classical law; ct. Kascr, (1979) 96 ZSS 109 sqq.

127Am. 1138, 1583 code civil.

128That was not always so; cf. Pollock and Maitland, vol. i f , pp. 209 s q. : "That the

ownership of the purchased goods did not pass to the buyer until they were delivered to him seems plain. We may gather from Bracton and Fleta that this was so even when the whole price had been paid. Unless there was some special agreement to the contrary, the risk remained with the party who was in possession ot the goods." For the roots of the modern notion of sale as having the consequence ot passing both title and risk, see Holdsworth, vol. I l l , pp. 354 sqq. "Res pent domino" seems to have been referred to for the first time by Blackburn J, in Martineau v. Kitciring (1872) LR 7 QB 436 at 454. For a comparison between English and Roman law, see Buckland/McNair, pp. 289 sq.; Lawson, (1949) 65

LQR 352 sqq.

129 Cf. ss. 20. 49 Sale of Goods Act 1979. ]M> (1809) 11 East 210 at 217.

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CHAPTER 10

Emptio venditio III

I. LIABILITY FOR EVICTION

We have been looking at the basic requirements for a contract of sale and at its main effects. We shall now turn our attention to situations where the expectations engendered in one ot the parties to the contract have been disappointed. For instance, the vendor's performance could become impossible (due to his tault or not) and either the vendor or the purchaser could be in detault with their respective performances. These problems could emerge in all types of contracts and therefore we shall delay our discussion until we have dealt with all of them.1 There are two situations, however, which specifically relate to contracts of sale: the vendor might fail to make the purchaser owner of the object sold; alternatively, that object might turn out to suffer from a latent defect. In any legal system, therefore, the question arises whether the law is prepared, under these circumstances, to protect the purchaser; whether, to use the terminology of modern English law, the contract of sale implies a warranty ot title and of proper quality.

1. Warranty of peaceable possession

In Roman law, emptio venditio did not imply a warranty of title.2 If the vendor was not the owner of what he sold, he was not able to transfer ownership to the purchaser: nemo plus iuris ad alium transferre potest, quam ipse haberet.3 That, of course, did not mean that the contract of sale was invalid,4 tor it was not (objectively) impossible to perform what had been promised. The purchaser could sue the vendor if the object was not handed over to him, but he did not have a remedy merely on account of his lack of title. This followed from the fact that there was no obligation on the vendor to transfer ownership;5 he merely had to grant the purchaser undisturbed possession. Being in possession, the latter was able to usucape and acquire ownership that way. However, the vendor was responsible not only for "vacuam possessionem tradere" but also for sustaining the continued enjoyment of the res.6 There was therefore an implied warranty of peaceable

1Cf. infra. Chapter 25.

-For a comparative discussion, see Raphael Powell, "Eviction in Roman h\v and Hnglish

Law", in: Studies in the Roman Law of Sale in memory of Francis tie '/.nlneta (1959), pp. 78 sqq., 86 sqq.

■' Ulp. D. 50, 17, 54. 4 Ulp. D. 18. 1, 28.

" Cf. supra, pp. 27H sqq. 6 Ct. supra, p. 27H.

293

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possession, for as soon as the true owner, by asserting his title, evicted the purchaser,7 the latter could hold the vendor responsible. This liability for eviction,8 as we find it in the law of Justinian and as it has become part and parcel of the ius commune, was the result of a long and interesting historical development, in the course of which several legal institutions, supplementing each other, eventually grew together.

2. Liability under the actio auctoritatis

First of all, there was auctoritas.9 This was a guarantee implicit in sale by mancipatio, of which we find traces in tab. 6, 3 of the XII Tables.10 If the position of the transferee was threatened because a third party brought the rei vindicatio against him, he could call on the transferor as his auctor to render procedural assistance. If the transferor refused to render such assistance or if the action was lost in spite of it, resulting in eviction, he was liable towards the transferee for double the purchase price. An actio auctoritatis must have been available for this purpose.11

7This is the main example that will be used for the purposes of the following discussion. The situation was the same, where the purchaser had become owner, but a third party could assert a real right against him: e.g. the holder of a non-possessory pledge (who could bring the actio Serviana) or a usufructuary (who could avail himself of the vindicatio ususfructus).

What mattered was whether the purchaser had the habere licere or whether he was evicted (due to whatever real right of a third party); cf. e.g. Pomp. D. 21, 2, 34, 2; Paul. D. 21, 2, 35; Afr. D. 21, 2, 46 pr.; Cels. D. 21, 2, 62, 2; Windscheid/Kipp, § 391, 3.

8On evincere, evictio, see Heumann/Seckel, p. 177; Cuiacius, Ad Africanum Tractatus VI, Ad L. Non tamen 24 de eviction.: "Evincere igitur est legitimo certamine vincere, id est, cognitio judicis, el non vincere tantum, sed etiam rem abducere, et auferre. Plus enim est evincere quam vincere, quia est etiam rem abducere et auferre. Una litera auget significationem, ut in elugere, emercri, enavigare. . . . "

9The literature on this enigmatic concept of ancient Roman law is vast. Cf. e.g. Gluck,

vol. 20, pp. 179 sqq.; Ernst Eck, Die Verpfiichtung des Verkaufers гиг Gewahrung des Eigenthums nach romischem undgemeinem deutschen Recht (1874), pp. 2 sqq.; Bechmann, vol. I, pp. 107 sqq.; Ernst Rabel, Die Haftung des Verkaufers wegen Mangels im Reckte, vol. I (1902), pp. 5 sqq.; Franz Haymann, Die Haftung des Verkaufers fur die Beschaffenheit der Kaufsache, vol. I (1912), pp. 1 sqq.; Kaser, Altrb'misches ius, pp. 135 sqq.; idem, Eigentum und Besitz im dlteren romischen Recht (2nd ed., 1956), pp. 89 sqq., 109 sqq., 129 sqq.; Arangio-Ruiz, Cotnpravendita, pp. 310sqq.;TheoMayer-Maly, "StudienzurFnihgeschichtederusucapioII", (1961) 78 ZSS 234 sqq.; Herman van den Brink, Ius fasque (1968), pp. 214 sqq.; Diosdi,

Ownership in Ancient and Preclasskal Roman Law (1970), pp. 75 sqq.; A.M. Prichard,

"Auctoritas in Early Roman Law", (1974) 90 LQR 378 sqq.; Hans Ankum, "L'actio de auctoritate et la restitutio in integrum dans le droit romain classique", in: Maior viginti quinque annis, Essays in commemoration of the sixth lustrum of the Institute for legal history of the

University of Utrecht (1979), pp. 1 sqq. For a modern overview over and summary of the discussion, sceJolowicz/Nicholas, pp. 146 sqq.; Kaser, RPrl, pp. 132 sqq.; Honscll/MayerMaly/Sclb, pp.173 sqq.

both mancipatio and the auctoritas liability flowing therefrom from the classical sources. It is not surprising, therefore, that it has even been argued that this liability never existed (cf. e.g. M. Sargenti, "Per una revisione della nozione dell'auctoritas come effetto della mancipatio", in: Studi in onore di Emiiio Betti, vol. IV (1962), pp. 15 sqq.; Alfredo Calonge, Eviction (1968), pp. 15 sqq.); but see e.g. Rabel, Arangio-Ruiz, Kaser, Diosdi and Prichard, Ankum, all as above.

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The origin of this liability seems to lie in delict.12 The vendor had accepted the purchase price, even though he was not owner of the thing sold, and even though the acquirer was therefore in danger of losing out under the true owner's vindication. This was not unlike furtum nee manifestum, a non-manifest theft of the money; hence the sanction of duplum.13 Of course, delictual liability required knowledge on the part of the vendor, but that could typically be presumed to exist14 in the small and unsophisticated agrarian society of early Rome, where legal transactions were not the order of the day. Only when the cogency of this conclusion came to be less and less obvious, did one start to read a guarantee into the transaction itself; liability came to be seen as a consequence of the act of mancipatio rather than of a delict; duplum as a lump sum for damages rather than as a composition. Further-reaching guarantees could be undertaken by way of special dicta in mancipio or in venditione; if, for instance, a piece of land had been sold "ita ut optimus maximusque est", the vendor was responsible for the freedom of servitudes over it.15

3. Liability under a stipulatio duplae

Liability under the actio auctoritatis required mancipatio. It did not cover the sale of res nee mancipi; nor did it apply where res mancipi had been sold and were merely handed over by way of traditio (or transferred by way of in hire cessio). In these instances no right of recourse, implied in law, was at first available to the evicted purchaser. This situation was plainly unsatisfactory and thus the parties started to make specific contractual arrangements modelled on the pattern of auctoritas. It became standard practice for the purchaser (first of all, where res mancipi, then also where valuable res nee mancipi were sold) to require the vendor to promise double16 the amount of the purchase price in case of eviction;17 slave dealers were even forced by the aediles

12Cf. e.g. Rabel, op. cit., note 9, pp. 8 sqq.; Kaser, Eigentum ttrtd Besitz, op. dr., note 9, pp. 115 sqq.; idem, "Die romische Eviktionshaftung nach Weiterverkauf", in; Sein und Werden im Recht, Festgabe fur Ulrich von Lubtow (1970), p. 488.

13Cf. infra, pp. 932 sqq.

14Cf. Max Kaser, "Typisierter 'dolus' im altromischen Recht", (1962) 65 BIDR 79 sqq., 96

ь Cels. D. 18, 1, 59; Ner. D. 21, 2, 48; Paul. D. 50, 16, 169; D. F. Mostert, "Uitwinning by die Koopkontrak in die Romeinse Reg", 1969 Ada Juridica 19 sqq.

16 The parties were, of course, free to vary the sum; they could agree to simplum or to triplum, quadruplum, etc.: cf. e.g. Paul. D. 21, 2, 56 pr.; Gluck, vol. 20, pp. 280 sqq.

Ь Cf. e.g. Varro, De re rustica. Lib. II, 10, 5; Gai. D. 21, 2, 6; Ulp. D. 21, 2, 37, 1; Rabel, op. cit., note 9, pp. 72 sqq.; Kaser, Eigentum und Besitz, op. cit., note 9, pp. 202 sqq.; Helmut Coing, "A Typical Development in the Roman law of Sale", in: Gesammelte Aufsatze zu

Rechtsgeschichte, Rechtsphilosophie und Zivilrecht, vol. I (1982), pp. 64 sqq.; Arangio-Ruiz,

Compravendita, pp. 341 sqq.; Watson, Obligations, pp. 83 sqq.; Pasquale Voci, "La responsibility del debitore da 'stipulatio poenae'"; in: Studi in onore di Edoardo Volterra, vol. Ill (1971), pp. 339 sqq.; Mostert, 1969 Ada Juridica 67 sqq.; Knutel, Stipulatio poenae, pp. 37 sq. In the case of res mancipi, such a stipulation was necessary only where a mancipatio did not take place (e.g. where res mancipi were sold to peregrini), but the purchaser could also

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curules to do so.18 This was the stipulatio duplae, and its standard wording, as contained in the aedilitian edict, probably ran as follows:

"Si quis eum hominem partemve quam ex eo evicerit, quo minus me eumve ad quern ea res pertinebit, habere recte liceat, qua de re lis tibi recte denuntiata erit, tarn quanti is homo emptus est, tantam pecuniam duplam partemve eius duplam mihi dari spondesne?"19

The vendor was liable, if the purchaser lost his case under an actio in rem brought against him by a third party, provided he had called upon the vendor to assist him in defending the action. With regard to res nee mancipi of lesser value it was recommended to take a stipulatio habere licere.20 The details are unclear: did it provide the purchaser with a claim for the recovery of the purchase price21 or for damages?22 And did it protect the purchaser against eviction by a third party (the true owner) or only against interference with his habere licere on the part of the vendor or his heirs?23 Be that as it may, the protection of the purchaser still contained one grave weakness: the remedies against eviction where not inherent in sale, but required an additional act by the parties. If neither a mancipatio had occurred nor a special stipulation been made, a remedy was not available.

4.Liability under the actio empti

(a)"Emptorem duplam promitti a venditore oportet"

At this stage, however, the actio empti came to be activated by the classical jurists. It had, of course, always been available in cases of dolus: if the vendor knew that the object sold either did not belong to him or was encumbered with a real right, or if he had specifically guaranteed the freedom from legal defects, he was liable—even before eviction had taken place—for the purchaser's interest in the proper

take a stipulatio duplae from the seller where there was mancipatio ("satisdatio secundum mancipium"?; cf. Kaser, RPr I, p. 130; Mostert, 1969 Ada Juridica 24 sqq.) It could serve as a basis for suretyship in the form of either sponsio or fidepromissio.

18Ulp. D. 21, 2, 37, 1 in fine. If the vendor refused to give the guarantee within two months, the purchaser was granted the actio redhibitoria: Gai. D. 21, 1, 28.

19Kaser, Festgabe von Lubtow, pp. 484 sq.; cf. also Lenel, EP, p. 568.

20Varro, De re rustica, for example, Lib. II, 2, 6; Lib. II, 3, 5; Lib II, 4, 5; all relating to different kinds of pecus (". . . earn rem . . . recte mihi habere licere spondesne?").

21Rabel, op. cit., note 9, pp. 136 sqq.

22Max Kaser, "Das Ziel der actio empti nach Eviktion", (1934) 54 ZSS 176 sqq.

23In contrast to the stipulatio duplae, the stipulatio habere licere did not mention eviction as a requirement; hence the narrow interpretation (in accordance with "nemo alienum factum promittendo obligatur") by Ulpianus in D. 45, 1, 38 pr. Cf. esp. Max Kaser, "Neue Studien zum altromischen Eigentum", (1951) 68 ZSS 152 sqq.; but see Ulp. D. 19, 1, 11, 18; Rabel, op. cit., note 9, pp. 30 sqq.; Watson, Obligations, pp. 85 sq.; Philippe Meylan, "La stipulation habere licere", (1970) 38 TR 67 sqq.; Arangio-Ruiz, Comprauendita, pp. 332 sqq.; Mostert, 1969 Ada Juridica 60 sqq. The narrow interpretation only came to prevail once the actio empti had been made available to the purchaser to recover his interest; see D. 45, 1, 38 pr., the first sentence of which probably still represents the opinion of Sabinus.

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implementation of this contract.24 Now one went a step further. The actio empti was a iudicium bonae fidei. It was available to provide the purchaser with what was due to him ex fide bona. That in turn, however, was not only tradere vacuam possessionem but also the sustaining of continued enjoyment of the res. The accepted way of ensuring the latter was to make the stipulatio duplae. Where this had been neglected, the position of the purchaser was incompatible with good faith, and hence he could compel the vendor, by bringing the actio empti, to give that guarantee.25 This does not seem to have applied to the sale of goods without much value26 or to provincial land, where it was not usual, according to the consuetudo regionis, to enter into a stipulatio duplae;27 nor could the purchaser pursue this avenue where it had been through mutual consent that a stipulatio duplae had not been entered into.28 The position is summed up by Ulpianus:29

"Emptori duplam promitti a venditore oportet, nisi aliud convenit: non tamen ut satisdetur . . . sed ut repromittatur. Quod autem diximus duplam promitti oportere, sic erit accipiendum, ut non ex omni re id accipiamus, sed de his rebus, quae pretiosiores essent, si margarita forte aut ornamenta pretiosa vel vestis Serica vel quid aliud non contemptibile veneat".

And then the special case of slaves: "[P]er edictum autem curulium etiam de servo cavere venditor iubetur." But what happened—apart from in this latter instance, dealt with in the aedilitian edict—if the vendor refused to give the stipulatio duplae? It was not possible in Roman law directly to compel the defendant to make a specific declaration. Paulus D. 21, 2, 2 supplies the answer: "Si dupla non promitteretur et eo nomine agetur, dupli condemnandus est reus."30 The defendant was condemned immediately for the amount that would have been due under the stipulatio duplae. Such a threat was likely to induce the vendor rather to give the required guarantee, as he could then still hope that an eviction might not in fact occur. In certain instances, the purchaser was even allowed to sue for duplum at a time when he had already been evicted and when, therefore, events had gone beyond the stage where to compel the vendor to give a guarantee (in the

24 Cf. e.g. Afr. D. 19, 1, 30, 1; Ulp. D. 19, 1, 1, 1; Ulp. D. 19, 1, 11, 15; Rabe], op. cit., note 9, pp. 93 sqq.; Antonius Louisius Olde Kaker, Dicta et Promissa (1963), pp. 69 sqq.

5 Ulp. D. 21, 1, 31, 20: "Quia adsidua esc duplae stipulatio, idcirco placuit etiam ex empto agi posse, si duplam venditor mancipii non caveat: ea enim, quae sunt moris et consuetudim's, in bonae fidei iudiciis debent venire." Cf, further Pomp. D. 45, 1, 5 pr.; Rabel, op. cit., note 9, pp. 75 sqq.; Kaser, (1934) 54 ZSS 182 sqq.; Arangio-Ruiz, Compravendita, pp. 346 sqq.; Mostert, 1969 Actajuridka 109 sqq.; Honsell, Quod interest, pp. 20 sqq. Did that apply only to the stipulatio duplae or also to the stipulatio habere licere? Cf. Ner./Ulp. 19, 1, 11, 8, but (on this text) Kaser, (1934) 54 ZSS 185; Arangio-Ruiz,

Compravendita, p. 347.

26Ulp. D. 21, 2, 37, 1.

Gai. D. 21, 2, 6: "Si fundus venierit, ex consuetudine eius regionis in qua negotium

gestum est pro evictione caveri oportet."

28Ulp. D. 21, 2, 37 pr.

29D. 21, 2, 37 pr.

30Cf. also Ner./Ulp. D. 19, 1, 11, 9.

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form of a stipulatio duplae) would have made sense. In D. 21, 2, 37, 2 we find one case:

"Si simplam pro dupla per errorem stipulates sit emptor, re evicta consecuturum eum ex empto Neratius ait, quanto minus stipulatus sit, si modo omnia facit emptor, quae in stipulatione continentur: quod si non fecit, ex empto id tantum consecuturum, ut ei promittatur quod minus in stipulationem superiorem deductum est."

According to Ulpianus, it did not matter that the purchaser had, by way of mistake, asked the vendor to stipulate only simplum. As long as he had called on the vendor to help him defend the rei vindicatio, he was still entitled, even after he had been evicted, to bring the actio empti for duplum. Paul. Sent. II, XVII, 2 ("Si res simpliciter traditae evincantur, tanto venditor emptori condemnandus est, quanto si stipulatione pro evictione cavisset") presents a much more generalized statement to that effect; here the interposition of the guarantee is plainly fictitious. It is, however, uncertain how far this still represents the position in classical law.31

(b) Liability for (he "positive interest"

Even then, however, there were still cases in which the purchaser eventually lost out.32 If the res nee mancipi that had been sold was not "pretiosior" but only "contemptibilis" or if in the particular area of the Empire where a piece of land sold was situated, the conclusion of stipulationes duplae was not common, an action was not available, either for duplum or for simplum.33 Furthermore, the defect in title might have caused damages to the purchaser without having led to a loss of possession: thus, the purchaser might have prevented eviction by acquiring the object from the third party (concursus causarum).34 Finally, it was possible that the actual damages were in excess of duplum. In all these cases it was of practical significance that, from the time of Julian, the actio empti was generally made available in cases of eviction, irrespective of whether there had been dolus on the part of the vendor or not. Hence, for instance, the following statement by Iulianus: "Venditor hominis emptori praestare debet, quanti eius interest hominem venditoris fuisse."35 We see that the action lay for

31Cf. particularly Levy, Obligationenrecht, pp. 213 sqq.; but see Honsell, Quod interest, pp. 23 sqq.

Medicus, Id quod interest, p. 52; Honsell, Quod interest, pp. 25 sqq.

33Ulp. D. 21, 2, 37, 1; Gai. D. 21, 2, 6.

34Cf. Eck, op. cit., note 9, pp. 29 sqq.; Fritz Schulz, "Die Lehre vom Concursus Causarum im klassischen und justinianischen Recht", (1917) 38 ZSS 132 sqq.; Medicus, Id quod interest, pp. 100 sqq.

35D. 21, 2, 8; cf. further e.g. Iul./UIp. D. 19, 1, 11, 18; Paul. D. 19, 1, 43; lav. D. 21, 2, 60; Paul. D. 21, 2, 70; Kaser, (1934) 54 ZSS 163 sqq.; Arangio-Ruiz, Compravendita, pp. 349 sqq.; Medicus, Id quod interest, pp. 52 sqq.; Honsell, Quod interest, pp. 25 sqq.; Hans Ankum, "Das Ziel der 'actio empti' nach Eviktion", in: Sodalitas, Scritti in onore di Antonio Guarino, vol. VII (1984), pp. 3215 sqq.

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"quanti (emptoris) interest hominem venditoris fuisse";36 other texts describe what the purchaser could sue for as "quanti tua interest rem evictam non esse"37 or "omne quod interest emptoris servum non evinci".38 This is what modern parlance refers to as ' 'positive interest".39 What the judge had to estimate was the plaintiff's (purchaser's) interest in rem habere; he had to be placed, financially, in whatever position he would have been in had he not been evicted. As Donellus put it:

". . . id quod nostra interest persequitur haec actio, in quo non quid nobis absit, sed quid habere potuerimus, si res mansisset, aestimandum est."40

"Quid habere potuerimus" included not only the benefit of the use of the object (i.e. its—simple—value)41 but also, for instance, everything that the purchaser would have acquired through the slave whom he had bought:

". . . quare sive partus ancillae sive hereditas, quam servus iussu emptoris adierit, evicta fuerit, agi ex empto potest: et sicut obligatus est venditor, ut praestet licere habere hominem quem vendidit, ita ea quoque quae per eum adquiri potuerunt praestare debet emptori, ut habeat."42

It was not very often that the purchaser resorted to the actio empti in order to claim quod interest; its exclusive scope of application was somewhat limited. Wherever the purchaser could use the actio empti in order to claim duplum or where, as was usual, a stipulatio duplae had in fact been concluded, he would rather pursue the latter opportunities.43 For not only did he then not have to substantiate his positive interest, but he could claim, without further ado, a lump sum; this lump sum was also very likely to exceed his interest and would thus

36 Not, however, in the cases of concursus causarum, where the actio empti only lay ad pretium reciperandum, i.e. for the return of the purchase price. The purchaser's habere licere was not infringed and therefore he could not claim quod interest rem habere licere. On the other hand, he had now paid the purchase price twice (where he had acquired the object from the true owner under a titulus onerosus—like sale) or he had paid a price, which, in the light of subsequent events, he need not have paid at all (acquisition from the true owner on account of a titulus lucraiivus, e.g. he happened to become his heir). Cf. Honsell, Quod interest, p. 38 sqq. and the literature quoted above.

37С 8, 44, 23 (Diocl.).

38Paul. D. 19, 1, 43. In Afr. D. 19, 1, 30, 1 we find "quanti mea intersit (rem) meam esse factam", but this refers to the (aggravated) liability under the actio empti for dolus; cf. Honsell, Quod interest, pp. 57 sq.

39For a comprehensive discussion, see Medicus, Id quod interest, pp. 53 sqq.; Honsell,

Quod interest, pp. 30 sqq.

40"Comment, ad Tit. Dig. de Evictionib. et Duplae etc.", Cap. VII, 3, in: Opera Omnia, vol. X (Florentiae, 1847), col. 1401, discussed by Honsell, Quod interest, pp. 31 sq.

41The relevant value to be estimated was the value at the time of eviction; as a consequence any increase in value by way of improvements effected by the purchaser was taken into consideration. Cf. Paul./Afr. D. 19, 1, 43-45; on the difficult problems posed by

this text, see Medicus, Id quod interest, pp. 80 sqq.; Honsell, Quod interest, pp. 50 sqq.; Knutel,

Stipulatio poenae, pp. 338 sqq.

Iul. D. 21, 2, 8. This is a typical case, where "quod interest" was for once likely to exceed dupla pecunia.

43The purchaser had a choice (elective concurrence of remedies): Knutel, Stipulatio poenae, pp. 335 sqq.

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give him more than he could have got otherwise. After all, the purchase price is usually not a bad indicator of the value of the object sold and double the purchase price should normally have covered everything he could have hoped to gain from the transaction. Yet it was only with the general availability of the actio empti in case of eviction that a warranty of peaceable possession could be said to be inherent in this bonae fidei iudidum.44

5. The position under Justinian

Justinian preserved this achievement of classical jurisprudence for posterity essentially unchanged. Of course, mancipatio and auctoritas had become obsolete and had to be eradicated from the sources,45 but otherwise he retained the Roman system of liability on eviction.46 The purchaser could sue when he was—partially or totally—deprived of his habere licere, as a result of a real right vesting in a third party. His claim could arise from either a specific promise of guarantee given by the vendor (usually a stipulatio duplae) or the contract of sale itself. If he sued on the contract of sale (actio empti), he could claim his interest in rem habere. Alternatively, where he could have asked the vendor for a stipulatio duplae, he could also use the actio empti to claim what he would have got had such a promise been given (i.e. dupla pecunia).47 Seeing that the actio empti covered his full interest (subject only to the general limitation imposed on the quantum of recoverable damages in C. 7, 47, I),48 a cogent reason for stipulationes duplae no longer

44 If the purchaser was aware of the defect in title, he could not sue the vendor on account of eviction: cf. С 8, 44, 27 and 30 (Diocl.)- But see C. 6, 43, 3, 4 (Just )- where an action

for the return of the purchase price is granted. This conflict between classical and Justinianic law has given rise to a dispute amongst the authors of the ius commune {Covarruvias, Donellus, Christinaeus, Fachinaeus, Carpzovius, Brunnemann, U. Huber and Van der Keessel on the one hand; Cujacius, Zoesius, Perezius, Groenewegen, Antonius Matthaeus III, Voet and Pothier on the other) that is fully canvassed in Van der Westhuizen v. Yskor Werknemers se Onderlinge Bystandsversekering 1960 (4) SA 803 (T) at 804H-812A. See Max Kaser, "Das romische Recht in Sudafrika", (1964) 81 ZSS 23 sqq.; for modern German law: § 439 BGB. The parties were also able, in their contract of sale, to exclude liability for eviction (pactum de non praestanda evictione); cf. Ulp. D. 19, 1,11, 18; Pothier, Traite du contrat de pente, nn. 182 sqq.; Gliick, vol. 20, pp. 295 sqq.; Vangerow, Pandekten, § 610, n. 4; Calonge, op. cit., note 11, pp. 116 sqq. On partial eviction, see Ulp. D. 21, 2, 1; Paul. D. 21, 2, 36; Iul. D. 21, 2, 39, 2 (Voet, Commentarius ad Pandectas, Lib. XXI, Tit. II, XV sq.; Pothier, nn. 140 sqq.; Gliick, vol. 20, pp. 332 sqq.). If the purchaser had not yet paid the purchase price, he could refuse to do so after litis contestatio had taken place with regard to the action by the third party brought against him {exceptio evictionis imminentis); cf. Pap. vat. 12, but see Pap. D. 18, 6, 19, 1; and Gluck, vol. 20, pp. 370 sqq.; Benohr, Synallagma, pp. 56 sqq. As far as the sale of claims (nomina) was concerned, see Cels./Ulp. D. 18, 4, 4 (". . . locupletem esse debitorem non debere praestare, debitorem autem esse praestare

. . ."); Herm. D. 21, 2, 74, 3 (". . . dumtaxat ut sit, non ut exigi etiam aliquid possit . . .

praestare cogitur"); Medicus, Id quod interest, pp. 167 sqq.

45Cf. e.g. Lenel, EP, pp. 542 sqq.

46Kaser, RPr II, pp. 391 sq.

47Cf. e.g. Levy, Obligationenrecht, pp. 216 sq.

48"Cum pro eo quod interest dubitationes antiquae in infinitum productae sunt, melius nobis visum est huiusmodi prolixitatem prout possibile est angustum coartare. Sancimus

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