Liability under the actio empti

(a) "Emptorem duplam promitti a venditore oportet"

At this stage, however, the actio empti came to be activated by the classical jurists. It had, of course, always been available in cases of dolus: if the vendor knew that the object sold either did not belong to him or was encumbered with a real right, or if he had specifically guaranteed the freedom from legal defects, he was liable—even before eviction had taken place—for the purchaser's interest in the proper implementation of this contract.^[1519] Now one went a step further.

"Emptori duplam promitti a venditore oportet, nisi aliud convenit: non tamen ut satisdetur... sed ut repromittatur. Quod autem diximus duplam promitti oportere, sic erit accipiendum, ut non ex omni re id accipiamus, sed de his rebus, quae pretiosiores essent, si margarita forte aut ornamenta pretiosa vel vestis Serica vel quid aliud non contemptibile veneat".

And then the special case of slaves: "[P]er edictum autem curulium etiam de servo cavere venditor iubetur." But what happened—apart from in this latter instance, dealt with in the aedilitian edict—if the vendor refused to give the stipulatio duplae? It was not possible in Roman law directly to compel the defendant to make a specific declaration. Paulus D. 21, 2, 2 supplies the answer: "Si dupla non promitteretur et eo nomine agetur, dupli condemnandus est reus."^[1525] The defendant was condemned immediately for the amount that would have been due under the stipulatio duplae. Such a threat was likely to induce the vendor rather to give the required guarantee, as he could then still hope that an eviction might not in fact occur. In certain instances, the purchaser was even allowed to sue for duplum at a time when he had already been evicted and when, therefore, events had gone beyond the stage where to compel the vendor to give a guarantee (in the form of a stipulatio duplae) would have made sense. In D. 21, 2, 37, 2 we find one case:

"Si simplam pro dupla per errorem stipulates sit emptor, re evicta consecuturum eum ex empto Neratius ait, quanto minus stipulatus sit, si modo omnia facit emptor, quae in stipulatione continentur: quod si non fecit, ex empto id tantum consecuturum, ut ei promittatur quod minus in stipulationem superiorem deductum est."

According to Ulpianus, it did not matter that the purchaser had, by way of mistake, asked the vendor to stipulate only simplum. As long as he had called on the vendor to help him defend the rei vindicatio, he was still entitled, even after he had been evicted, to bring the actio empti for duplum. Paul. Sent. II, XVII, 2 ("Si res simpliciter traditae evincantur, tanto venditor emptori condemnandus est, quanto si stipulatione pro evictione cavisset") presents a much more generalized statement to that effect; here the interposition of the guarantee is plainly fictitious. It is, however, uncertain how far this still represents the position in classical law.^[1526]

(b) Liability for (he "positive interest”

Even then, however, there were still cases in which the purchaser eventually lost out.^[1527] If the res nee mancipi that had been sold was not "pretiosior" but only "contemptibilis" or if in the particular area of the Empire where a piece of land sold was situated, the conclusion of stipulationes duplae was not common, an action was not available, either for duplum or for simplum.^[1528] Furthermore, the defect in title might have caused damages to the purchaser without having led to a loss of possession: thus, the purchaser might have prevented eviction by acquiring the object from the third party (concursus causarum).^[1529] Finally, it was possible that the actual damages were in excess of duplum.

"...id quod nostra interest persequitur haec actio, in quo non quid nobis absit, sed quid habere potuerimus, si res mansisset, aestimandum est."^[1535]

"Quid habere potuerimus" included not only the benefit of the use of the object (i.e. its—simple—value)^[1536] but also, for instance, everything that the purchaser would have acquired through the slave whom he had bought:

"... quare sive partus ancillae sive hereditas, quam servus iussu emptoris adierit, evicta fuerit, agi ex empto potest: et sicut obligatus est venditor, ut praestet licere habere hominem quem vendidit, ita ea quoque quae per eum adquiri potuerunt praestare debet emptori, ut habeat."^[1537]

It was not very often that the purchaser resorted to the actio empti in order to claim quod interest; its exclusive scope of application was somewhat limited. Wherever the purchaser could use the actio empti in order to claim duplum or where, as was usual, a stipulatio duplae had in fact been concluded, he would rather pursue the latter opportunities.^[1538] For not only did he then not have to substantiate his positive interest, but he could claim, without further ado, a lump sum; this lump sum was also very likely to exceed his interest and would thus give him more than he could have got otherwise. After all, the purchase price is usually not a bad indicator of the value of the object sold and double the purchase price should normally have covered everything he could have hoped to gain from the transaction. Yet it was only with the general availability of the actio empti in case of eviction that a warranty of peaceable possession could be said to be inherent in this bonae fidei iudidum.^{[1539] [1540] [1541] [1542]}

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