Excursus: the sale of wine

Wine was either sold out of vats (dolia, hence vinum dohare) or bottled in amphorae (vinum amphoanum). Vinum doliare was usually new wine; while it was kept in doliis, it went through the fermentation process.

These dolia were made from clay; they were pitched on the inside and could contain more than 1 ООО 'W They were usually sunk into the ground of the cella vinaria;^[1460] ^{^[1461] their openings were closed with clay lids. Older and better wine was poured into and kept in amphorae,^[1462] ^{^[1463] clay vessels with a volume of about 26 t.^%A Unlike the dolia, amphorae had a narrow neck which could be corked up.^[1464] Such corks seem to have worked very well; we are told by Pliny, for instance, that under the Principate wine from the famous vintage of 121 B.C. (the so-called Opimianian wine) was still available.^[1465] The same cannot be said of the clay lids which were put on the dolia; here one could not always prevent the air from entering and hence there was a danger of the wine turning sour or musty. "Proprium autem inter liquores vino mucescere aut in acetum verti, extantque medicinae volumina."^[1466] Acor and mucor was a specific risk connected with the purchase of wine;^[1467] nevertheless, this risk normally passed to the purchaser with the conclusion of the sale, in accordance with emptione perfecta periculum est emptoris. There was, however, one way for the purchaser to avoid this consequence: "Si vinum venditum acuerit vel quid aliud vicii sustinuerit, emptoris erit damnum, quemadmodum si vinum esset effusum vel vasis contusis vel qua alia ex causa sed si venditor se periculo subiecit, in id tempus periculum sustinebit, quoad se subiecit. "^[1468]
The purchaser could buy the wine subject to his approval and make perfection of the sale dependent upon degustatio.^[1469] This seems to have been very common for the sale of vinum doliare.^[1470] Cato recommended for the standard transaction a period of three days within which degustatio had to occur: "...
in triduo proximo viri boni arbitratu degustato; si non ita fecerit, vinum pro degustato erit."^[1471] Perhaps the requirement of arbitratus bom viri was dropped in classical times, for, as Yaron points out, "one wishes to buy wine according to one's own ludgement. and not according to that ot some impartial vir bonus".'¹' It has often been argued that an agreement regarding degustatio was read into any contract of sale concerning vinum dohare, so that the risk of acor and mucor was always on the vendor until such tasting had taken place. In the case of vinum amphorarium, however, the right ot degustatio had to be specifically reserved.'¹⁴ This opinion hinges on the assumption that Ulpianus in 1). 18, 6, 1 pr. originally referred to vinum amphorarium, and that only the compilers generalized tins statement by way of interpolation. It seems preferable, however, to accept the text as it stands. Perhaps it referred to vinum doliare only, for an agreement concerning degustatio could in any event not have helped the purchaser very much in the case of vinum amphorarium.'"" He would have been confined to some sort of spot check. But whether the wine in one amphora had or had not turned sour or musty did not tell the purchaser much about the other amphorae; everything depended entirely on whether each individual amphora had been properly corked."" Sometimes wine (or grain or oil. etc. )'^r was bought per aversionem,"* or uno pretio:^w a lump sum was agreed upon tor a whole (unspecified) quantity ("Ktiuj in Bait On these terms, the purchaser could buy, for instance, a large quantity ot cheap, often adulterated wine, which he was then able to process in such a way that it could be used as a drink for his slaves.¹'⁴ Such transactions were, of course, not normally subject to degustatio and were perfecta the moment the contract had been concluded.
Where, on the other hand, the price was determined by quantity (so and so much per unit), and where the exact sum therefore still had to be established adnumerando. admetiendo or adpendendo, the position—according to the prevailing Sabinian opinion —was different: '"Sabimi4 ct Cassini rune perhei emptioneni cxistiniant. cum adnumerata adniens;).ulpensave suit, quia venduio quasi sub Bjic condicione videtur fieri, ut in smgulos
Studies tie/Aiheta. p. 75; but tcc Alm Watson. \V)W) 50JRS 255; Frier. (19S3) Inn ZSS 281 sq.: "improbare" iPaul 1). IS. 1. 34. 5) implies ji judgment ol fact; what nutrers is not whether rbe purchaser personally likes the wine, but whether, due to organic deterioration, the wine is no longer merchantable. On the arbitnuin boni viri in general, see Von, Obblitfiiziom. vol. I. 1. pp. 1W sqq.
¹⁽⁴ Cf. e.g. SeekelLevy, (1927) 47 Z55 21II, sqq.; K.iscr. RPr\, p. 55}. ^b
Harder, l-eststhnft UlmniuH. pp. 2¹! sq.
"" Wolf. Lrror. p. 131. n. 73.
c. 4. 4S. 2. 2.
^wUlp.Il. 18. 6. 4. I; Mod. IX IK. 1.62.2.
Cjii. 11. 18. 1. 35. 6.
Usually in the ease of vinum doliare. but this type of transaction was also possible with regard to vitunn amphoarium: cf. C 4, 48, 2. 1: "Cuni autem imiverMini, quod in horreis er.it positLim venibse sine memura...." Cf. e.g. Anmgio-Rui/. Conipvaveihiiia. pp. 257 sqq.; the different types ot sale of wine are listed by Frier, (1983) 1^{11 (however, the vendor was responsible for damages due to nonperformance. The two obligations could, of course, be set off against each other; the purchaser's compensation claim was then limited, for all practical intents and purposes, to the difference by which his interesse exceeded the (as yet unpaid) purchase price.^[1474]}
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Excursus: the sale of wine

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