Generic sales

(a) The Roman rule and its origin

The most interesting and, from a modern point of view, even startling exception to the range of possible objects of a contract of sale was provided by the fact that mere generic sales (or "sales by description") recognized in Roman law.

Things which are normally counted, measured or weighed and are therefore usually defined by reference to their genus could, of course, be sold, but only if they were either specified ("these two amphorae of Tusculan country wine") or if a whole (specific) stock of such non-specific goods was sold ("all the wine in my cellar").^[1229] Even the sale of generic goods from an identified source, i.e. from a specified mass or stock, was possible ("ten amphorae of wine from my cellar").^[1230] But the sale of, say, "twenty amphorae of white wine", or of "a slave", that is, the pure generic emptio venditio, was unknown to Roman law,^[1231] ^{^[1232] ^[1233] ^[1234] ^[1235] This raises two questions: how could long-distance trading, especially among the big grain and wine merchants, be carried out without it? And secondly: what was the reason for this peculiarly restrictive state of affairs? The answer to the latter question lies in the historical evolution of sale.^[1236] In all the ancient laws, sale was essentially a market transaction. It was concluded inter praesentes, and conclusion of the contract and execution of the mutual performances (i.e. the transfer of the object of the sale and payment of the purchase price) coincided. Thus, in early Roman law, sale was tantamount to an executed sale or cash sale. This is obvious regarding the formal act of mancipatio, in the course of which originally, in order to effect the sale, the price was weighed out and handed over in exchange for the acquisition of a res mancipi.
But the informal sale, too, was first of all cash sale. In the course of time this strict and simple system of transfer against cash was gradually relaxed, first in that the purchase price could be credited, then also by allowing the delivery of the object sold to be separated from the conclusion of the sale. Thus, by the time of the later Roman Republic, the formless emptio venditio had become a fully executory contract.^[1237] It no longer contained all the elements necessary for the transfer of ownership of the object sold in itself; nor did it require payment of the purchase price for its validity. The contract merely gave rise to the obligations on the part of the vendor to perform whatever acts were necessary to transfer ownership, on the part of the purchaser to effect the payment. The contract of sale in this sense was conceived as a uniform transaction with an all-round range of application: it could be concluded as a cash or credit transaction, among Roman citizens and with peregrini, in respect of res mancipi and res nee mancipi. Mancipatio eventually degenerated into a mode of transfer of res mancipi; though retaining many of its archaic features,^[1238] it no longer functioned in itself as (the) sale, but was regarded as a way of discharging the vendor's obligation arising from the underlying contract. It is an intriguing feature of the Roman law of sale, though, that the old cash sale ideas lingered on and that the fully developed, executory emptio venditio always retained certain features of the ancient executed type of transaction. One of these features was the fact that the sale of generic goods never came to be accommodated within the framework of emptio venditio by the Roman lawyers. As a matter of course, every sale in the olden days was the sale of one or a number of specific things; for in a system where the parties get together on the marketplace and exchange their performances on the spot, it is evident that the objects of the sale are those specific items which the vendor has actually brought along.
A generic sale, under these circumstances, is a logical impossibility. The lawyers, however, retained what had once been a natural restriction, even at a time when it had become possible to envisage and conceptualize this type of transaction. (b) Generic sale and sale of specific goods
Two factors may well have contributed towards this conservative attitude. On the one hand, the cash sale remained by far the most frequent type of sale and continued to dominate particularly the common transactions of everyday life. On the other hand (and this is, at the same time, the answer to the first of the above-mentioned questions), there does not seem to have been a great practical need for the purely generic emptio venditio. Big business (and whoever else might have been involved in such transactions) could (and actually did) avail itself of two stipulations in order to achieve the same practical result.^[1239] That was convenient enough and it also allowed the parties to stipulate, in the same breath, all the terms they deemed necessary in the individual circumstances. In any event, this procedure was hardly more cumbersome for the parties than adapting, by way of special pacta, the rules relating to the consensual emptio venditio to suit the envisaged generic sale. This would have been necessary, however, seeing that these rules were geared very much towards the (non-generic) sale of specific goods.^[1240] The latter observation, incidentally, is hardly less valid today than it was in Roman law. The generic sale has, of course, long since been recognized, but it has always been overshadowed by the sale of specific goods. Even modern legislators have given pride of place to the sale of specific goods and have devoted careful and loving consideration to all the details and eventualities thereof. The sale of generic goods tends to be regarded traditionally as a deviation from the norm that can be dealt with by way of a mere appendix or some special provisions thrown in here and there.
In modern life, however, it dominates to such an extent that it may well be asked whether the law should not also reverse its priorities.^[1241] In so far as this has not yet been achieved, we are still caught up in the thinking patterns of lost ages, where producer and consumer met, without any intermediaries, in a shop or marketplace, in order to effect their transactions. Ultimately, it is the cash sale of ancient Rome that still lurks in the background. (c) The double function of the contract of sale
Another consideration may be added at this stage. Sale, as we have said, was an obligatory (or executory) act. It gave rise to certain obligations, which still had to be discharged, particularly the obligation to transfer the object sold. But at the same time the contract of sale itself contributed to the execution of this very obligation; it contained a "real" (as opposed to merely obligatory) element. This seemingly paradoxical situation can best be explained by a comparison with the position in modern German law. In § 433 I BGB we read that "by the contract of sale the seller of a thing is bound to deliver the thing to the purchaser and to transfer ownership of the thing". As far as this transfer of ownership is concerned, we have to refer to § 929 BGB. "For the transfer of ownership of a movable thing," this rule provides, "it is necessary that the owner of the thing deliver it to the acquirer and that both agree that the ownership be transferred." All in all, therefore, - three acts are necessary to conclude and carry out the transaction. There is, first of all, the (purely obligatory) contract of sale. Then there is traditio, the act of physical transfer of the object sold. But over and above that, there is a further contract accompanying the delivery: transferor and transferee have to agree on the transfer of ownership. This second contract is conceptually detached from and unconnected to the contract of sale (the principle of separation); in German law, furthermore, its validity has to be determined in abstracto, i.e.
independent of whether the underlying contract of sale is void or valid {or whether, indeed, such an underlying contract has even been concluded—the principle of abstraction).^[1242] It has been maintained that for the transfer of ownership in Roman law, apart from traditio, an agreement of this kind, separate from the contract of sale, was required — but (unlike in German law) not an abstract one: a causa traditionis in the sense of an agreement on the legal purpose of transferring ownership, a special legal act determining why traditio is actually made: venditionis causa, donationis causa, mutui causa, etc.^[1243] Today, however, another view prevails.^[1244] It has been shown that transfer of ownership depended on two elements only: iusta causa traditionis and traditio. Gaius II 19, 20, for instance, states quite clearly: "Nam res nec mancipi ipsa traditione pleno iure alterius fiunt, si modo corporales sunt et ob id recipiunt traditionem. Itaquc si tibi vestum vcl auruni vel argen turn tradidero sive ex venditionis causa sive ex donationis sive quavis alia ex causa, statim tua fit ea res. si modo ego eius dominus sim."
The contract of sale and traditio: no further acts were necessary. The contract of sale, then, had a double function: it was the obligatory act and iusta causa traditionis — iusta causa traditionis in the sense that it implicitly contained the will of the parties to transfer ownership on the basis of a contract of sale; and it was this common purpose that formed the basis of traditio and justified the transfer of ownership. If that was so, it becomes clear (and that is why we have made the point in the present context) that it was not merely their innate conservatism which prevented the Roman lawyers from recognizing generic sales. The very structure of the Roman emptio venditio did not lend itself to accommodating this type of transaction.^[1245] If the contract of sale served as iusta causa traditionis and thus contained everything that was necessary to transfer ownership except traditio, it could only refer to a specific thing; for, whilst it is perfectly possible to agree to sell goods described only by reference to their genus, ownership can logically be transferred with regard to only one or the other specific object.
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Generic sales

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