Emptio Venditio

The contract of purchase and sale (emptio venditio) was a bilateral contract whereby one person promised to transfer to another a certain thing (merx) and the other on his part promised to pay a price (pretium).^{^[741]}^{^[742]} The contract was concluded as soon as the parties reached agreement (consensus) to enter into such a transaction, and the reciprocal rights and duties this entailed were defined by the requirements of good faith (bona fides).'"'¹² Although some uncertainty exists as to the origins of emptio venditio, evidence suggests that it developed from an earlier form of transaction initially involving an immediate transfer of property in exchange for a simultaneous and reciprocal transfer of other property^{^[743]} that in later times embraced an exchange for money (this was the case with mancipatio as a formal cash sale).^{^[744]} After the conclusion of this simple transaction, no outstanding obligation between the parties remained.

In the last phase in the development of emptio venditio the notion prevailed that the agreement (consensus) of the parties to convey, as distinct from the transfer itself, was sufficient to bring the relevant obligation into existence.href="#_ftn745" name="_ftnref745" title="">^{^[745]}

The contract of sale was concluded and became legally binding when the purchaser (emptor) and the seller (venditor) came to an agreement to buy and sell, and had reached consensus in respect of the object of the sale (res or merx) and the payment price (pretium). Because sale was a bona fidei contract the parties had to act in good faith when the contract was concluded. To enforce the reciprocal rights and duties arising from the contract, the parties had recourse to two personal actions: the actio empti was available to the buyer as a remedy to claim delivery of the object sold and compensation for damage caused by the malicious intent (dolus) or negligence (culpa levis in abstracto) of the seller; the actio venditi, on the other hand, was available to the seller to pursue the payment of the purchase price together with interest as from the moment of delivery of the object sold.^{^[746]}

No set formalities were legally required with regard to the agreement (consensus), which could be expressed in any manner such as in writing, orally, through a messenger or otherwise.

As in the case of all consensual contracts, it was unnecessary for the parties to appear in each other's presence at the time the contract of sale was concluded. However, the parties were free to subject the agreement to additional requirements or certain conditions. During the classical and post-classical periods it became a common practice to embody a sale agreement in a written document, mainly for evidentiary purposes. Although this was not initially a requirement of validity, Justinian ordained that if the parties had agreed to reduce the agreement to writing, the contract of sale came into force only when the relevant document had been composed.^{^[747]} In classical law, a symbolic sum of money or an object of small value (e.g., a coin or a ring) known as arra (or arrha) was often given by the buyer at the conclusion of a sale as evidence of firm agreement.^{^[748]} The giving of arra was not required for the conclusion of the contract, although the parties could insist on this practice. However, in later law arra assumed a greater significance. Thus, Justinian stated that if the buyer had given the arra and subsequently refused to complete the contract he forfeited it, while the seller who repudiated the contract was bound to return twice the value of the arra. ^{^[749]}

The object of the contract of sale (res or merx) had to be specific (certum), in existence or capable of existing^{^[750]} and legally capable of being the subject of commercial transactions (res in commercio). Any clearly defined thing or even a complex of things or assets (e.g. an inheritance), a right or a servitude, could be the object of a sale as long as such thing or things could be privately owned (i.e. they were in commercio).^{^[751]} Sales of genera, things described by kind (genus) such as five vats of oil, were not recognized in Roman law as contracts of sale.^{^[752]}However, where a person intended to sell a fixed quantity from a certain stock (such as ten bags of corn from his barn), a contract of sale was only constituted when the relevant things had been separated from the whole and specified.^{^[753]} Not only things already in existence at the time of conclusion of the contract but also future things (res futurae) could be sold.

In this regard a distinction was drawn between the sale of a hope or expectation (venditio spei)—for example, the next catch of fish—and the sale of an object hoped for or expected to come into being (venditio rei speratae)—for example, next year's crop. The first scenario represented an unconditional sale of a hope or expectation for a specific price. It entailed the fact that even if nothing materialized the buyer was still legally obliged to pay the purchase price. In the second case, on the other hand, the sale was conditional insofar as the future thing first had to come into existence before the relevant contract would become legally binding.^{^[754]} Finally, it should be noted there was no requirement that the thing sold had to be the property of the seller, since the latter was not obliged to transfer ownership of the thing.^{^[755]} On the other hand, where the thing was the property of the buyer, the contract of sale was void.^{^[756]}

For a contract of sale to be valid the price (pretium) of the object sold had to be fixed (certum).^{^[757]} In classical law there was dispute among jurists as to whether or not the price could be determined by a third person. However, Justinian recognized the validity of a sale with respect to which the price was left to be fixed by a third person, but the relevant contract came into effect only when the third person had actually determined the price.^{^[758]} It was required, further, that the price should consist of money (in pecunia) as otherwise it would be impossible to distinguish sale from exchange or barter^{^[759]} as well as buyer from seller (their duties being different).^{^[760]} Moreover, the price had to be genuine (verum or iustum), i.e. it had to be an actual price that was more or less in proportion with the value of the object being sold.

If it was clearly inadequate (for instance, where a property of considerable value was expressed to be sold for one denarius) or if there was no intention for the fixed price to be paid, the transaction was not a sale but a donation or gift.^{^[761]} In classical law the principle of free bargaining prevailed and so the amount of the price was left to the unfettered discretion of the parties concerned—the law did not intervene to dictate how they should draw up their sale agreement.^{^[762]} However, post-classical law developed the so-called laesio enormis (‘enormous loss') rule: if land had been sold at less than half its actual value at the time of the sale, the seller could cancel the contract, return the price paid and claim back the land, unless the buyer made up the price to the full value.^{^[763]}

4.7.1.1 Duties of the Buyer

The first and most important duty of the buyer was to pay the agreed price to the seller.^{^[764]} In principle this payment had to be tendered at the time of delivery of the thing sold, although the parties could agree otherwise.^{^[765]} Moreover, the buyer had to reimburse the seller for expenses incurred by the latter in looking after the thing during the period between the conclusion of the contract and delivery.^{^[766]} Finally, the buyer was liable to pay interest if he had fallen into default (in mora) by failing to render payment on the date specified in the agreement.^{^[767]}

4.7.1.2 Duties of the Seller

The principal obligation resting on the seller was to give free and undisturbed possession (vacua possessio) of the thing sold to the buyer.^{^[768]} The seller had to deliver the thing in accordance with the contract description, together with any accrual yielded by it in the period between the conclusion of the contract and delivery.^{^[769]} However, the seller was not bound to make the buyer owner of the thing sold.

If he succeeded in delivering possession of the thing to the buyer, it was immaterial whether or not such thing belonged to a third person. As long as the possession of the buyer remained undisturbed, the buyer could not bring any action against the seller on the grounds that the latter had not been the owner of the thing.

It was not necessary that the thing sold was delivered immediately after the conclusion of the contract, but a considerable period of time might elapse between contracting and delivery. During this period the seller was required to take care of the thing and to maintain it in good condition. If the thing should be destroyed or damaged as a result of malicious intent (dolus) or negligence (culpa levis in abstracto) on the part of the seller, the latter was liable for damages. However, if while in the care of the seller the thing was destroyed or damaged by an act of God (vis maior) or accident (casus fortuitus), such as an earthquake or fire, the risk was borne by the buyer in accordance with the rule periculum est emptoris. This meant that if such destruction or damage occurred, the seller was simply required to deliver the remnants whilst the duty of the buyer to pay the price remained unaffected.^{^[770]} The rule applied from the moment the contract of sale became perfecta, i.e. when the parties had agreed to buy and sell a particular thing at a fixed price and no suspensive condition appeared in the contract.^{^[771]} Although the rule periculum est emptoris placed a heavy burden on the buyer, he was to some extent compensated by the fact he was entitled to all accretions to the thing before delivery.^{^[772]} It should be noted, further, that this general rule did not apply where the parties had made an agreement to the contrary or where the seller fell into default (mora) in completing delivery or was otherwise to blame. In such cases, the risk of destruction of or damage to the thing before delivery remained with the seller.^{^[773]}

If the seller was himself owner of the thing sold, the contract of sale was regarded as a iusta causa traditionis and in classical law the ownership of the thing passed to the buyer on delivery.

Under the law of Justinian, however, delivery of the thing did not transfer ownership upon the buyer unless the full price had been paid or security had been provided for payment thereof.^{^[774]} On the other hand, where the seller was not the owner of the thing the principle applied that no one could transfer more rights to another which he himself had not possessed (nemo plus iuris ad alium transferre potest quam ipse haberet). This meant the buyer did not acquire ownership, although the possibility of acquisition of ownership by usucapio remained open. Where the thing sold belonged to a third party, that party could institute the rei vindicatio against the buyer to assert his ownership and evict the buyer from the thing. In such a case, the buyer could institute the actio empti for damages but only in the case where the seller had fraudulently sold the thing of a third person. In other cases the buyer had to bear the loss. However, in the course of time a further duty on the seller developed, namely to guarantee against eviction.

Eviction (evictio) occurred when a third party deprived the buyer of his possession of the thing sold after delivery to him by instituting an actio in rem, such as rei vindicatio or actio Publiciana. Moreover, eviction (usually related to only a portion of the thing) could transpire when a third party laid claim to another form of real right, such as an usufruct (vindicatio ususfructus) or a servitude (vindicatio servitutis), in respect of the thing.^{^[775]} Originally, when ownership over the thing sold was transferred by mancipatio the buyer who was evicted could demand that the seller assist him in defending his title. If the seller declined or if his defence was unsuccessful, the buyer could institute the actio auctoritatis for double the price against the seller.^{^[776]} This remedy had limited application, however, since it did not apply in cases where res nec mancipi were sold or where foreigners (peregrini) were involved. In these cases there was no guarantee against eviction and the buyer simply had to bear the loss. In the course of time it became the practice in such cases to conclude stipulationes whereby the seller promised to reimburse the buyer in the event the latter was evicted. A distinction was drawn between the stipulatio duplae where the seller promised to pay the buyer twice the amount of the purchase price, and the stipulatio habere licere where the seller guaranteed the buyer peaceful use of the thing sold and undertook to compensate him for any damages he incurred as a result of eviction.^{^[777]}^{title="">^[778]} Nevertheless, in the absence of stipulatio the buyer bore the prejudice arising from eviction, unless (as previously noted) he could prove that the seller had acted fraudulently i.e. he had deliberately sold and delivered someone else's thing or his own thing encumbered with a real right (e.g. a servitude), in which case he had the actio empti at his disposal. However, as the law evolved it became viable for a prospective buyer to institute the actio empti against the seller to compel him to enter into a stipulatio duplae. If the seller refused, he was condemned to pay double the price to the buyer (as if he had in fact entered into such stipulatio) on the grounds that his failure to secure the buyer against eviction was contrary to bona fides.^20,8 During the classical period it became possible for the buyer to hold the seller liable for damages by means of the actio empti in all cases of eviction without the use of stipulatio. Such a stipulatio was no longer deemed necessary since it was regarded that in every sale there was an implicit guarantee against eviction.^{^[779]} The buyer's action in such cases was directed at compensation for the loss he suffered as a result of the eviction, and this included the profit and advantages the buyer had to forgo because he could not possess the object (lucrum cessans) as well as consequential damage, i.e. damage he suffered through no longer possessing the object (damnum emergens).^{^[780]}

Besides an implicit guarantee against eviction, Roman law also recognized the existence of an implicit guarantee against latent defects, i.e. defects that rendered the thing sold unfit for its ordinary or contemplated purpose. Regarding this protection measure, the law also went through a long process of evolution. In early law, the buyer was not protected against the presence of latent defects unless the seller had fraudulently (dolo malo) omitted to disclose a defect known to him but of which the buyer was unaware. In such a case the seller could be held liable with the actio empti for damages. The same action could be employed by the buyer if the seller had made fraudulent allegations or promises (dicta et promissa) concerning the presence or absence of certain qualities in the object sold.^{^[781]}However, no general legal duty was placed on the seller to warranty the absence of latent defects. Therefore, in the course of time it was recognized that the parties could, as in the case of eviction, enter into stipulationes whereby the seller guaranteed that the object being sold was free of certain defects or endowed with certain features. If it later transpired that the thing suffered from the said defects or lacked the promised features, the buyer could institute the actio ex stipulatu against the seller for damages. In the late republican era the aediles curules, officers charged with duties such as policing the city and supervising over markets and market transactions, introduced special provisions in their edict requiring sellers of slaves as well as beasts of draught and burden (iumenta) to publicly disclose certain temporary or permanent physical and mental defects (morbi et vitia). In respect of slaves, the seller was further required to declare whether the slave was a vagrant (erro) or a runaway (fugitivus) or burdened with noxal liability (i.e. whether he had committed a delict for which his master could possibly be liable).^{^[782]} If the seller failed to declare any of these defects at the conclusion of the contract of sale and such undisclosed defects did thereafter appear, the buyer had a choice of two aedilician actions: the actio redhibitoria and the actio quanti minoris. By means of the former action, which had to be initiated within 6 months of the sale, the buyer could demand rescission of the sale, return of the purchase price by the seller and the restoration of the thing by the buyer. The latter action, which had to be brought within 12 months of the sale, pursued affirmation of the sale and restitution of the difference between the price paid and the actual value of the defective slave or animal. The aedilitian actions could also be employed by the buyer if the object sold was different from what the seller had stated and promised (quod dictum promissumve fuit).^{^[783]} With respect to both actions the seller's liability was strict: it arose from the mere presence of the latent defects, while the knowledge or ignorance of the seller was irrelevant.^{^[784]} If the seller knew of the defect in the thing sold and did not disclose this information to the buyer, or if he made fraudulent declarations about the thing with a view to inducing the buyer to purchase it, he could be held liable by the buyer with the actio empti for damages. Over time the aedilitian remedies were extended to sales of slaves and draught animals outside the market, and eventually by the time of Justinian’s reign they encompassed sales of every kind including land. A further development facilitated buyers to use the actio empti for the same purposes as those for which the aedilitian remedies had been used.name="_ftnref785" title="">^{^[785]} As a result of this broadened scope of the actio empti, the aedilitian actions in fact became redundant but were retained as separate remedies in the legislation of Justinian.

4.7.1.3 Conditional Sales

The parties to a contract of sale were free to modify their respective obligations by including supplementary agreements (pacta adiecta) in the form of conditional clauses into the contract. For instance, they could agree that the seller had the right to cancel the contract of sale if, within a fixed period of time, he was able to find another buyer willing to pay a higher price for the object sold.^{^[786]} Such a supplementary agreement, referred to as in diem addictio, was usually construed as introducing a resolutive condition, although it could also be expressed in the form of a suspensive condition.^{^[787]} Another type of additional clause was the lex commissoria, by means of which the seller reserved the right to rescind the contract if the buyer failed to pay the purchase price within a prescribed time.^{^[788]} Reference may also be made to the so-called pactum displicentiae, which gave the buyer the right to return the thing to the seller and retrieve his money if, within a certain time, the thing did not satisfy him.^{^[789]} Finally, the pactum de retrovendendo operated to grant the seller the right to buy back the object sold at an agreed price, within a specified time or at the occurrence of a particular event.^{^[790]}

These supplementary agreements could be enforced by means of the actiones empti and venditi, actiones in factum and, in some cases, the rei vindicatio.

4.7.2

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

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