1. Did the purchase price have to consist in money?

(a) The Sabinian view

The second essential element of any contract of sale was agreement about the price, and the first fundamental question that posed itself in this regard was whether the price necessarily had to consist in money.

Or, to put the same question slightly differently: did the rules relating to sale apply to exchange transactions? This problem was the subject of one of the most famous school controversies in classical Roman law.^9HIt must be borne in mind that the answer to it had an immediate and dramatic practical consequence: only if they could fly the flag of sale were consensual exchange deals at all actionable; otherwise they were bound to founder helplessly on the shallow sands of the Roman contractual system. This explains the persistent attempts of the Sabinians to broaden the only channel that was close enough to prevent this disaster: emptio venditio. Their proposition was based on an historical argument:

"Origo emendi vendendique a permutationibus coepit, ohm cnim non ita erat nummus neque ahud nierx, aliud pretium vooibatur, sed unusquisque secundum necessitatem temporum ac rerum utilibus inutilia permutabat, quando plerumque evenit, ut quod alter: superest alteri desit, sed quia non semper nee facile concurrebat, ut, cum tu haberes quod ego desiderarem, invicem haberem q'uod tu accipere velles, electa materia est, cuius publica ac perpetua aestimatio difficultatibus perniurationum aequalitate quantitatis subveniret, eaque materia tor ma public percussa usum dominiumque non tam ex substantia praebet quani ex quantitate, nee ultra merx utrumque, sed alterum pretium vocatur.'"¹'¹

This is a most interesting lecture in economic history,™ taking us back to the days of the early subsistence economy. Whatever was needed over and above what was produced on the own farm could be acquired only, before money was introduced, by way of exchange.

The introduction of money finally solved the problem that the other party might not actually be interested in the goods offered in exchange; by virtue of the value that it represented, it came to be regarded as a generally acceptable counter-performance.¹"¹ Thus sale was born, but it had its origin in exchange. It was in actual tact, in the Sabinian view, nothing more than a refined and specialized form of exchange. Or, the other way round: exchange is the most ancient form of sale.^[1278] If the latter was generally regarded as enforceable, then surely the mother transaction could not lack this most vital of attributes. ^[1279] ^{^[1280] ^[1281] (b) The Proculian view
The Proculians were not impressed by this argument. They stressed the technical differences between the two types of transaction:
. nam ut aliud est vendere, aliud emere, alius emptor, alius venditor, sic aliud est pretium, aliud merx: quod in permutatione disccrni non potest, uter emptor, uter venditor sit."^[1282] ^{* ^[1283]}
And indeed, the praetor had to know to whom he had to grant the actio empti and to whom the actio venditi. A whole variety of substantive issues depended on who was vendor and who was purchaser.^[1284] The alternative, namely to regard both parties, at the same time, as vendor and purchaser, would not really have made sense either.^[1285] Caelius Sabinus tried to overcome this difficulty by suggesting that the rem venalem habens had to be regarded as seller.^[1286] However, quite apart from the practical difficulties of establishing who had in actual fact held out his thing for sale, such a distinction would have been unfair:^[1287] since both parties owe a thing (rather than money), it would not have been equitable to expect one of them (the "purchaser") to transfer ownership, the other only to provide habere licere.
Ultimately, therefore, the Proculian view prevailed. Some sort of compromise was reached, though, in that the buyer was allowed to promise something in addition to money. As long as at least part of the price was in money, the Proculian objections were met and the actions on sale could be granted. No text deals specifically with the case where the counterperformance consisted in money and an object that was to be exchanged, but we find the actio venditi being granted in analogous situations: where, for instance, the purchaser, in addition to paying a certain price, had agreed to repair one of the vendor's houses^[1288] or to take a lease of one of the vendor's estates.¹⁰⁴ Transactions of this kind can, of course, lead to difficult questions of where to draw the line, for it would hardly be reasonable to apply the law of sale in all these cases no matter what the parties had actually intended, no matter, too, how insignificant the balance payable in money was compared to the rest of the counterperformance. (c) Sale and exchange
The distinction between exchange and sale is less important today than it was under classical Roman law, for to us the one transaction is as valid and enforceable as the other. It has, however, not entirely lost its practical significance, even in systems which boldly provide that the rules relating to sale "apply mutatis mutandis to exchange".^[1289] Such blanket provisions do not solve the problem, since, for instance, many of the rules implying an obligation to pay a purchase price cannot even be applied mutatis mutandis.^[1290] Today, the classification problem often arises with regard to the common trade-in agreements. If A buys a motor car from B for 10 000 rand, trading in his old car for 1 000 rand and paying the remainder in cash, the transaction is usually regarded as a contract of sale, the purchaser being allowed to provide a substitute for part of the purchase price.^[1291] The situation in German law has, however, been somewhat distorted owing to considerations of saving turnover tax. Thus the transaction has been split into a contract of sale and an agency agreement, the vendor (of the new car) undertaking to sell the purchaser's old car for him (i.e. not in his own name).^[1292]
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

1. Did the purchase price have to consist in money?

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