Emptio rei speratae and emptio spei

(a) Emptio rei speratae

No valid sale without a thing to be sold: that was the rule. It sometimes happened, however, that objects were sold which had, as both parties knew, not yet come into existence, but were expected to do so in the foreseeable future; indeed, such transactions concerning res futurae were very old and common in Rome.

In Cato, de agri cultura,⁷⁸ we encounter the sale of olives on the tree, grapes on the vine, winter fodder which is still growing and the yield of a flock of sheep. The range of possible transactions was not confined, however, to situations where the object of the sale had not yet been harvested but was already growing. Next year's harvest from a specific field or the offspring of a certain number of dams (or of a slave) could be sold, even if the seed had not yet been sown, the mother-sheep or -slave not yet been inseminated.⁷⁹ Our main testimony dealing with the legal effects of such transactions is Pomp. D. 18, 1,8 pr:

"[E]t tamen fructus ct partus futun rcctc cmentur, ut, cum editus esset partus, iam tune, cum contractum esset negotium, venditio facta intellegamr: sed si id egerit venditor, ne nascatur aut fiant, ex empto agi posse."

The sale was taken to be subject to a condition.⁸⁰ Only if it eventually transpired that there was an object, did the contract of sale become effective (ex tune, i.e. with retroactive effect). If the crop failed, the contract of sale failed too. As a consequence, it was only in the former case that the prospective purchaser had to pay the purchase price. The risk that the whole of his harvest might be destroyed by hail or inundation, or that his slave might turn out to be infertile was therefore still carried by the vendor. In order to provide for the possibility that the harvest be brought in, but prove to be disappointingly small, the purchase price was normally fixed proportionately to the actual yield (so and so much per bushel, per pound, etc.

). If the vendor, subsequent to the conclusion of the contract, regretted the terms of the sale and therefore prevented fructus or partus (and with it the contract of sale) from coming into existence, the condition, in accordance with general principles,⁸¹ was deemed to have been fulfilled, the contract deemed to have become effective. This type of transaction has come to be known as emptio rei speratae. The Roman lawyers themselves did not use a specific term to designate it and, indeed, the transaction had nothing abnormal about it. In particular, it did not constitute an exception to the rule that a valid sale required a thing to be sold.

(b) Emptio spei and its viability

However, the Roman lawyers were prepared to go even one step further. Could the parties not have intended to shift the risk of there

CLV sqq., 146 sqq.

For details of the development, see Volker Kurz, " 'Emptio rei speratae' 'pura' oder 'sub condicione'?", (1974) 20 Labeo 195 sqq.

^8(J Arangio-Ruiz, Compravendita, pp. 118 sqq.; Masi, Condizione, pp. 63 sqq., 158 sqq., 224 sq.; Alfredo Calonge, "En torno al problema de la retroactividad de la condicion en el derecho clasico", in: Studi in onore di Edoardo Votterra, vol. Ill (1969), pp. 158 sq.; Thomas, TRL, p. 282; unconvincing Kurz, (1974) 20 Labeo 194 sqq., 199 sqq., according to whom the emptio rei speratae was an unconditional sale.

⁸¹ Cf. infra, pp. 730 sq.

being no crop onto the purchaser? One can easily imagine a situation where a farmer urgently needs money and, at the same time, wants to insure himself against the vagaries of the weather. The purchaser, on the other hand, might be prepared to speculate, and risk his money, in return for the chance of making a big profit.^[1262] Where, in fact, a lump sum was fixed at a fairly low level for the whole yield, it could be surmised that the parties intended their transaction to work this way. What we are dealing with, under these circumstances, is not a normal business transaction:^[1263] it contains a strong element of gambling.

It is not surprising, therefore, that our sources concentrate on different examples when they discuss this type of contract: the purchase of a prospective haul offish, of a catch of birds, or of the largesse which a triumphant princeps might have ordered to be thrown to the populace and which a particular person was able to pick up.^[1264] One might be tempted to ask whether such kinds of transactions are not too silly to deserve legal analysis. How often did it happen that a stroller along the shore came across some fishermen and decided to offer them his purse for the next haul?^[1265] ^{^[1266] ^[1267] ^[1268] And, assuming that a contract of sale did come into existence on these terms, would he not run the risk of having to pay the price, even though the fishermen subsequently neglected their duty to catch fish and merely spent two idle hours on a pleasure cruise around the bay? But, firstly, as David Daube has pointed out, we should not only have in mind the casual stroller when assessing the viability of this type of contract.
”[W]e must also think, say, of a firm of victuallers at Rome undertaking to pay certain fishermen at Pcssinus a fixed sum for their catches of cod during the And as to the second question, one has to remember that sale was a bonae fidei contract. The fishermen, under a contract of sale, had a duty to cast their net and to make a reasonable effort to procure a good haul.⁸⁷
The third of the above-mentioned examples, too, is not as foolish as it sounds to us. True, the throwing of largesse is somewhat out of fashion today. In Rome, however, consuls, praetors or emperors liked to mark triumphs or other kinds of feasts with such an act of generosity: not only coins were thrown to the mob but also various kinds of food, tickets for grain, clothing, gold, silver, precious stones, pearls, paintings, slaves, and even animals.⁸⁸ What a skilled person could catch was certainly worth a considerable investment.
Again, as concerns the temptation on the part of the seller to neglect his duties in the scramble for largesse, once he had secured his right to claim a purchase price, the fact that sale was bonae fidei implied that he could bring the action only if he himself had done his best. Furthermore, it has to be taken into consideration that for the purposes of analysing a specific problem, simple and more theoretical cases were sometimes used rather than the more complex situations which occurred in actual practice. Suppose the purchaser bought half of the largesse picked up by the vendor. ⁹ the latter would then have an economic incentive to catch "as catch can". The legal problem remains the same. (c) "... quasi alea emitur"
As has already been indicated, the Roman lawyers accommodated this type of transaction within the framework of the contract of sale:
"Aliquando tamen et sine re venditio intellegitur, vcluti cum quasi alea emitur. quod fit, cum captum piscium vel avium vel missilium emitur: emptio enim contrahitur etiam si nihil incident, quia spei emptio est: at quod missilium nomine co casu captum est si evictum fuerit, nulla eo nomine ex empto obligatio contrahitur, quia id actum intellegitur."*¹
This was emptio spei and, as opposed to the emptio rei speratae, it was not conditional but came into existence immediately. Whether, ^[1269] ^{^[1270] ^[1271] ^[1272] eventually, there was an object to be sold or not did not matter.⁹¹ It is interesting to note that Pomponius acknowledged that this constituted, in fact, an exception to the rule "no sale without an object to be sold". At the same time, he gave an ingenious argument for allowing this exception. It is not necessarily the res futura which the purchaser buys; instead, if nothing comes up, it is the hope (spes) that something might have come up. Thus, one can look at the contract as if (not a res, but) a chance ("quasi alea"), which may or may not materialize, has been the object of the transaction.}
A further interesting instance of an emptio spei can be found in Ulp. D. 18, 4, 11:
"Nam hoc modo admittitur esse venditionem 'si qua sit hereditas, est tibi empta', ct quasi spes hcreditatis: ipsum enim incertum rei veneat, ut in retibus."
A hereditas could be the object of a contract of sale, but only if the person in respect of whose estate the transaction was effected had already died—contracts concerning the estate of living persons are (and were) unacceptable for reasons of public policy and morality.⁹² If a person believed himself to be the heir and sold his inheritance, he was normally liable to the purchaser once it turned out that the inheritance had actually fallen to somebody else.^[1273] This was not so if it had specifically been provided "ut quidquid iuris haberet vcnditor emptor haberet".^[1274] The tacit guarantee was effectively excluded; the vendor was obliged to transfer the inheritance^[1275] if he became heir; otherwise his obligation fell away. It did, however, happen that the parties went one step further and agreed that the vendor was not only exempted from liability if he had not, in fact, become heir, but that he should be allowed to retain the purchase price too.^[1276] This is the situation referred to by Ulpianus, and this indeed resembles the purchase of the next haul of the net. It was an emptio spei.^[1277] Of course, the vendor remained liable for dolus.
III.}

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

Emptio rei speratae and emptio spei

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