Evaluation of the Roman risk rule

Proper consideration of its application in practice may well make us differ from those who regard the risk rule as an inequitable anomaly. 'I rue, we are dealing with a deviation from res perit domino.

Also, as a matter of history, the origin of the rule probably lies in the cash sale of the ancient Roman law.'“ Where every sale is executed immediately, both risk and ownership are bound to pass at one and the same time, namely when the contract is concluded. It was only with the rise of the fully executory contract that a divergence became possible. Whilst the transfer of the object (and with it the final act necessary for the transfer of ownership) could be postponed to a later date, one continued to think in terms of the cash sale pattern in some other respects, for instance with regard to the question of risk. But this does not mean that we are here dealing, as far as classical law is concerned, with an inappropriate atavism. Periculum est emptons is a reasonable solution to the difficult problem of risk allocation.¹¹¹' corresponding entirely to the underlying economic interest structure. As between the parties, the object of the sale belongs (in an untechmcal sense) to the purchaser.^[1483] ^{^[1484]" It has become part of his economic sphere. Hence the duty, on the part of the purchaser, to reimburse the vendor for the expenses necessary tor the maintenance of the thing whilst still m his possession;"⁷ hence the right of the purchaser to claim any accessions to or fruits of the thing which arose since completion (i.e. normally conclusion) of the sale.^11H The purchaser may. furthermore, resell the thing; the vendor can't (unless he is prepared to commit a breach of contract). Thus it is the purchaser who benefits from a rise, but who also takes the risk of a (all in the market price. The contract of sale embodies the will of the parties that the object of the sale shall belong to the purchaser, and we have seen^[1485] ^{^[1486] that in this regard it was more than a merely executory agreement. It contained the will to transfer ownership and it was only the act of traditio that was postponed for the time being. Ex fide bona, therefore, what the parties were aiming at was to be given effect to as soon and as far as possible. Under these circumstances, a regime of periculum est emptoris is not unnatural. It must be emphasized again that risk in this context referred only to events which did not originate in the vendor's sphere and which had nothing to do with the fact that the vendor still kept the object of the sale in his possession.}
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Evaluation of the Roman risk rule

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