Liability under the actio auctoritatis
First of all, there was auctoritas.[1504] This was a guarantee implicit in sale by mancipatio, of which we find traces in tab. 6, 3 of the XII Tables.[1505] If the position of the transferee was threatened because a third party brought the rei vindicatio against him, he could call on the transferor as his auctor to render procedural assistance.
If the transferor refused to render such assistance or if the action was lost in spite of it, resulting in eviction, he was liable towards the transferee for double the purchase price. An actio auctoritatis must have been available for this purpose.[1506] The origin of this liability seems to lie in delict.[1507] The vendor had accepted the purchase price, even though he was not owner of the thing sold, and even though the acquirer was therefore in danger of losing out under the true owner's vindication. This was not unlike furtum nee manifestum, a non-manifest theft of the money; hence the sanction of duplum.[1508] Of course, delictual liability required knowledge on the part of the vendor, but that could typically be presumed to exist[1509] in the small and unsophisticated agrarian society of early Rome, where legal transactions were not the order of the day. Only when the cogency of this conclusion came to be less and less obvious, did one start to read a guarantee into the transaction itself; liability came to be seen as a consequence of the act of mancipatio rather than of a delict; duplum as a lump sum for damages rather than as a composition. Further-reaching guarantees could be undertaken by way of special dicta in mancipio or in venditione; if, for instance, a piece of land had been sold "ita ut optimus maximusque est", the vendor was responsible for the freedom of servitudes over it.[1510]3.
More on the topic Liability under the actio auctoritatis:
- Liability under the actio empti
- Extended liability under the actio empti
- CHAPTER IX. THE SLAVE AS MAN. IN COMMERCE. ACTIO DE PECULIO. ACTIO TRIBUTORIA.
- 2. Liability for others in Roman law (apart from noxal liability)
- ACTIO DE PECULIO
- Liability under a stipulatio duplae
- ACTIO TRIBUTORIA
- The actio de in rem verso
- The legis actio procedure
- Noxal Liability
- The actio de pauperie in South African law
- The actio negotiorum gestorum (contraria) as enrichment action
- The Legis Actio Procedure
- Cumulative liability