Pactum displicentiae

(a) Function

The subjection of a contract of sale to a pactum displicentiae, in turn, was solely in the interest of the purchaser. The clause was often phrased along the following lines: "ut si displicuisset [res] inempta [sit]",^{1 6} and a provision of this kind clearly left the determination of whether or not the contract was to stand completely in the purchaser's discretion: if he did not like the object he had bought, he was able, without further ado, to terminate the sale.^[3782] ^{^[3783] As a rule, the parties specified a time within which the purchaser had to make up his mind;^[3784] what happened if they didn't cannot be said with any degree of certainty.^[3785] Occasionally, the right to invoke the pactum displicentiae was lost even before the period for approval had elapsed.}

Thus we read of the sale of three horses, which the purchaser was allowed to return within three days if he found them unsatisfactory. After having used the horses in a contest, and despite having won the first prize, he decided to return them. Under these circumstances, Ulpian allowed the vendor to claim the purchase price: "nam inter nos hoc actum", he argued,^[3786] ^{^[3787] ^[3788] ^[3789] "ut experimentum gratuitum acciperes, non ut etiam certares." Even though in this particular case a contract had probably not yet been concluded (which appears to be the reason why Ulnian granted an actio praescriptis verbis rather than the actio venditi),¹⁶¹ the same considerations must have prevailed if the parties had entered into a sale on approval. (b) Construction
How was the pactum displicentiae construed by the Roman jurists? According to Ulpian, the matter was determined in favour of a resolutive condition: "[CJonstat non esse sub condicione distractam, sed resolvi emptionem sub condicione", he stated unequivocally.¹⁶² But this ruling referred only to clauses of the type "si displicuisset inemptus erit".
Yet, occasionally, the parties seem to have settled on "si placuerit, erit tibi emptus"¹⁶ and this formulation hinted rather strongly at a condido suspensiva. The authors of Justinian's Institutes, in fact, understood it in this sense.^[3790] What mattered, therefore, was "quid actum sit":^[3791] how the parties, in each individual case, had intended their transaction to operate.^[3792] The different legal consequences resulting from the two courses available to the parties are illustrated in a text by Mela.^[3793] A number of mules were sold on approval. If the purchaser liked them, he had to pay the purchase price; if he did not, he owed a certain sum for every day he kept the animals. During the trial period the mules were taken away by a gang of robbers. What did the purchaser have to pay? If the pactum constituted a resolutive condition, the purchase price: emptione perfecta periculum est emptoris. If, on the other hand, the clause was of a suspensive nature, the sale was nondum perfecta and the risk of loss or destruction on account of vis maior remained with the vendor. In this case he had to pay only the rent agreed upon. IV.}

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

Pactum displicentiae

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