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.

“ D. 19. 2. 33: d. e.g. Haymann. (19281 48 ZSS 406 sqq.

“ Cf. e.g. Seckel/Levy. (19271 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. (19201 41 ZSS 140: Seckel/Levy. (19271 47 ZSS 231: Meylan. (19491 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. whether traditio had taken place or not, the purchaser was obliged to 11W

pay.

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 essent neque 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,^[1475] ^{^[1476] ^[1477] ^[1478] ^[1479] ^[1480] ^[1481]" he could not tolerate unwieldy objects lying around and obstructing orderly trathc.^M1 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 periculum 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."^[1482] 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. 7.}

<< | >>

↑

Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

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

More on the topic Afr. D. 19, 2, 33 et al.: evidence against periculum emptoris?: