Demarcating the areas of emptio venditio and locatio conductio

Almost anything could be the object of a contract of sale,²⁸ whether corporeal or incorporeal: chattels (especially slaves) or land, claims against third parties or inheritances, servitudes, praedial or personal, etc.

²⁴ Cf. e.g. Fachinaeus, Joe. cit.; cf. also e.g. Perezius, Praetectiones, Lib. IV, Tit. XXXVIII, 20.

"⁵ For the modern version of arrha poenitentialis, cf. § 359 BGB.

/S 336 BGB.

"'The distinction between essentialia, naturalia and accidentialia negotii was developed in the Middle Ages under the influence of Aristotelian logic. Cf. Helmut Coing, "A Typical Development in the Roman Law of Sales", in; Gesammelte Aufsatze zu Rechtsgeschichte. Rechtsphilosophie und Zivilrecht, vol. I (1982), pp. 73 sq.; idem, "Zum Einfluss der Philosophie des Aristoteles auf die Entwicklung des romischen Rechts", (1952) 69 ZSS 32 ^sq·,₈

" Paul. D. 18, 1, 34, 1: "Omnium rerum, quas quis habere vel possidere vel persequi potest, venditio reete fit." was the subject matter of the transaction, the contract was not sale but hire (locatio conductio). Wherever a legal system distinguishes between different types of contracts and wherever the naturalia negotii vary according to how a specific transaction is classified, intricate problems of where to draw the line arise. What, for instance, if I engage a goldsmith to make me a ring? Is it sale of the ring or hire of the goldsmith's services?

"Item quaeritur, si cum aurifice mihi convenerit, ut is ex auro suo certi ponderis certaeque formae anulos mihi faceret, ct acciperet verbi gratia denarios CC, utrum emptio et venditio an locatio ct conductio contrahatur. Cassius ait materiae quidem emptionem venditionemque contrahi, operarum autem locationem et conduc­tionem.

The question, as we see, was controversial. Cassius even argued that we are dealing here with a mixed type of transaction. Eventually the opinion came to prevail that the contract was one of sale, provided the vendor (maker) supplied the material.^[1223] The opposite was the case where the purchaser had given the goldsmith the gold; also in building contracts, for instance, where the "purchaser" had asked the "vendor" to build a house on his (the "purchaser's") ground.^[1224] These are subtle distinctions. In the latter two instances the hire of the services clearly dominates the transactions, whereas the transfer of ownership from the maker/builder to the customer, which might point in the direction of sale, is, at best, only incidental.^[1225] But to apply the rules of sale wherever the contractor is bound to produce the work from materials provided by himself (except in the "superfides-solo-cedit" situations), seems not always to be entirely satisfactory. Where the value of those materials, as compared with that of the work, is quite insignificant, it is hardly apposite to speak of a contract of sale.^[1226] Or take the case where the contractor produces a non-fungible object for a specific customer: it may well be argued that the rules relating to the contract for work are more suitable in this instance, particularly in view of the fact that it will be difficult for the customer to sell this object elsewhere.^[1227]

Similar problems of demarcating the respective areas of emptio venditio and locatio conductio could arise in other cases, another famous example being the one discussed in Gaius III, 146:

"Item, si gladiatores ea lege tibi tradidcrim, ut in singulos qui integri exierint pro sudore denarii XX mihi darentur, in cos vero singulos qui occisi aut debilitati fuerint denarii mille, quaeritur utrum emptio ec venditio an locatio et conductio contrahatur."

Somebody wants to organize a gladiatorial show.

2.