Liability under a stipulatio duplae
Liability under the actio auctoritatis required mancipatio. It did not cover the sale of res nee mancipi; nor did it apply where res mancipi had been sold and were merely handed over by way of traditio (or transferred by way of in hire cessio).
In these instances no right of recourse, implied in law, was at first available to the evicted purchaser. This situation was plainly unsatisfactory and thus the parties started to make specific contractual arrangements modelled on the pattern of auctoritas. It became standard practice for the purchaser (first of all, where res mancipi, then also where valuable res nee mancipi were sold) to require the vendor to promise double[1511] the amount of the purchase price in case of eviction;[1512] slave dealers were even forced by the aediles curules to do so.[1513] This was the stipulatio duplae, and its standard wording, as contained in the aedilitian edict, probably ran as follows:"Si quis eum hominem partemve quam ex eo evicerit, quo minus me eumve ad quern ea res pertinebit, habere recte liceat, qua de re lis tibi recte denuntiata erit, tarn quanti is homo emptus est, tantam pecuniam duplam partemve eius duplam mihi dari spondesne?"[1514] [1515] The vendor was liable, if the purchaser lost his case under an actio in rem brought against him by a third party, provided he had called upon the vendor to assist him in defending the action. With regard to res nee mancijri of lesser value it was recommended to take a stipulatio habere licere."0 The details are unclear: did it provide the purchaser with a claim for the recovery of the purchase price[1516] or for damages?[1517] And did it protect the purchaser against eviction by a third party (the true owner) or only against interference with his habere licere on the part of the vendor or his heirs?[1518] Be that as it may, the protection of the purchaser still contained one grave weakness: the remedies against eviction where not inherent in sale, but required an additional act by the parties. If neither a mancipatio had occurred nor a special stipulation been made, a remedy was not available. 4.
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- Excursus: the stipulatio Aquiliana
- Mutuum and stipulatio
- STIPULATIO ALTERI
- 2. Liability for others in Roman law (apart from noxal liability)
- CHAPTER 4 Stipulatio poenae
- Stipulatio alteri, Agency and Cession
- Liability arising from specific prormssa
- Noxal liability
- Strict liability in disguise
- The liability of the mandatarius
- Contractual Liability
- 3. Liability for Others
- 1. Vicarious liability
- Liability for omissions
- Cumulative liability