Initial impossibility and contracts of sale

Contracts of sale, on the other hand, gave rise to bonae fidei indicia where such problems did not occur. The judge was neither asked to estimate "quanti ea res est" nor was he hemmed in by an awkward and narrow wording of the formula's intentio.

He was invested with a broad discretion, for under the actiones empti and venditi he was instructed to condemn in "quidquid ob earn rem N^m N^m A° A° dare facere oportet ex fide bona".⁹² As a result, the consequences of initial objective impossibility were determined with much greater flexibility than in the case of stipulations.^[3473] True: in many of our sources the sale is said to be invalid: "... si... corpus... in rerum natura ante venditionem esse desierit, nulla emptio est", said Paulus;^[3474] Nerva, Sabinus and Cassius are reported to have opined "nihil venisse" (and to have granted an unjustified enrichment claim to the purchaser if he had already paid the purchase price)^[3475] where the object of the sale had burnt down,^[3476] and Modestinus declared "emptio non teneat" in cases of a sale of sacred, religious or public land.^[3477] But we know by now that these pronouncements sound much more clear-cut and technical to us than they were intended by the Roman lawyers. Modestinus, in fact, in the very same sentence, goes on to grant the actio empti to the disappointed purchaser—despite the fact that the sale was "invalid". In other cases of objective initial impossibility, the actio empti was available too: "Si sterilis ancilla sit, cuius partus venit,... cum id emptor ignoraverit, ex empto tenetur venditor." ^[3478] The sale of a liber homo as a slave was also valid provided that the purchaser did not know about the true status of the person involved.^[3479] Only where the object of the sale had been destroyed or had otherwise perished before the conclusion of the sale does the question of contractual liability never seem to have been discussed.^{1 0} Thus, the only thing one can safely state in a more general vein about the impact of initial objective impossibility on a contract of sale is that the (primary) obligation to transfer vacua possessio of the object did not exist: in that respect impossibilium was indeed nulla obligatio.^[3480] ^{^[3481] To say, however, that this always entailed invalidity of the whole transaction, is merely a modern and ahistorical jaqon de parley.
The sale wi invalid in so far as it did not have its normal or typical consequences: the vendor did not have to honour his primary obligation (because he could not), the purchaser did not owe the purchase price, and where he had paid it, he could claim it back by way of the condictio. This kind of "invalidity" did not, however, exclude the possibility that under certain circumstances a contractual action for the positive interest^[3482] could be brought against the vendor. 5.}

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

Initial impossibility and contracts of sale

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