COMBINED TRANSACTIONS: HIRE-PURCHASE IN ROMAN LAW

The picture presented so far was, of course, still somewhat patchy. Many (informal) agreements, which two or more parties might have wanted to enter into, were still "nudum"; since no action was available to enforce them, they were, in effect, not binding.¹⁴⁷ Thus, there were unsatisfactory gaps in the Roman contractual system, and it became crucially important to determine, for every slightly atypical arrange­ment, whether it could be squeezed into one of the existing contractual niches and, if so, into which one.

It is by no means rare that a purchaser requires certain goods for his immediate use without, however, being able to pay the whole purchase

“ Practycke in civile saecken (Rotterdam 1649). Cap. CCIII.

^IL Commentarius ad Pandectas, Lib. IV. Tit. VIII. II.

For details, see Coing. Festschrift Hubner, pp. 38 sqq.. also on the meaning of ex aequo et bono under the ius commune.

¹¹¹ "Schiedsvertrag": §§ 1025 sqq. ZPO.

¹⁴ §§ 1026 sqq. ZPO.

^¹ As far as the procedure is concerned, the arbitrator must observe a number of special rules laid down by the ZPO. and certain general principles of (civil’) procedure; otherwise he is free (within the terms of the arbitration agreement) to determine the award in his own discretion. Today, incidentally, the arbitration agreement normally has to be in writing (§ 1027 ZPO). On the historical development of arbitration in Germany, see Hermann Krause. Die geschichttiche Entwicklung der Schiedsgerichtsbarkeit in Deutschland (1930). The French code de procedure has taken over the "amiable compositeur” from the ius commune {art.

^w However, in the Corpus Juris Civilis nuda pacta are associated with aequitas naturalis (Ulp- D. 2. 14. 1 pr.); thus they could provide the basis for a naturalis obligario (cf. e.g. Ulp. D. 46. 3. 5. 2; Pap. D. 46. 3. 95. 4; Guido Astuti. I contratti obbligatori nella storia del diritto italiano, vol. I (1952). pp. 176 sqq.). price. Under these circumstances the vendor will often be prepared to give him credit, provided he retains some form of security. One of the most obvious ways of securing the vendor's claim is to make transfer of ownership of the res vendita dependent upon payment of the full purchase price.^[2741] Modern legal systems accommodate these needs and interests of the parties in the form of hire-purchase contracts'^[2742] or instalment sales.^[2743]

In Rome, the parties were taken to have concluded two transactions: a contract of emptio venditio, combined with a locatio conductio (rei).^[2744] The Roman lawyers, however, did not deal with them in isolation, but adjusted the rights and duties of the parties in a most flexible and undogmatic manner. A generalizing statement about how the problems arising from the cumulative combination of sale and lease were tackled, is provided by Paulus:

"Interdum locator non obligatin', conductor obligatin', veluti cum emptor flindum conducit, donee pretium ei solvat.... Item si pretio non soluto inempta res facta sit, tune ex locato erit actio."^{[2745] [2746] [2747]}

A piece of property has been sold. Either the sale may have been unconditional (as presumably, for instance, in the example of the first sentence) or it may have been concluded subject to a lex commissoria (it is likely that this is the situation dealt with in the second sentence). The vendor has not yet transferred ownership, since the purchase price has not been paid. But he is prepared to allow the purchaser to live on the property in the meantime; he therefore leases it to him.

As long, however, as the purchaser/lessee paid the instalments of the purchase price, the vendor/lessor was not able to reclaim the land. Ulpianus D, 43, 26, 20 makes it clear that this was so, even where the purchaser was only precario tenens. It must have applied, a fortiori, where he was a lessee.^[2749] "Locator non obligatur, conductor obligatur": if the purchaser was bound under the contract of lease, he could, in turn, not bring the actio conduct! against the vendor. The overriding intention of the parties was, after all, the conclusion of a sale. Questions of risk and liability therefore had to be decided according to the rules relating to emptio venditio, and the position of the purchaser was adequately protected by the actio empti. There was no room for an actio conduct!: the sale, in so far, overshadowed all else.^[2750]

V.