Pretium certum

(a) Borderline cases

The certainty requirement, on the other hand, led to a couple of very interesting borderline cases; for "certum pretium" was not taken to imply that the parties must necessarily name the actual figure.

Thus we find the following statement by Ulpianus: "Huiusmodi emptio 'quanti tu eum emisti'... valet." Reason:..magis enim ignoratur, quanti emptus sit, quam in rei veritate incertum est."^[1296] In this example the purchaser does not know the price. He seems to be very keen to have the object, whereas the vendor just has an interest not to sell at a loss. Perhaps he does not remember what he once had to pay for it when he himself bought the thing; hence, the parties do not specify a sum, but fix the price at "whatever sum the vendor has bought it for". Here the price is objectively certain, and this was sufficient for the validity of the sale. The fact that the parties did not know the actual amount, did not matter. In other words: the price had to be certum in the sense of at least being ascertainable. Whether the same holds true in the other example given in D. 18, 1, 7, 1 ("quantum pretii in area habeo") is very doubtful.^[1297] ^{^[1298] First of all: do the parties really deserve protection for what can only be described as a gamble? What sober motive could induce a purchaser to promise whatever he happens to have in his safe as the purchase price? More importantly, though, there is, of course, the possibility that no money at all appears to be in the safe. In that case the sale cannot conceivably be valid. It is, one can say, a chance (alea) that the purchaser is substituting for a real price. Whilst, however, one might be able to buy or sell a chance ("emptio spei"), it can hardly have been regarded as possible to pay with a chance.
After all, the price had to consist in money. There are thus, I think, strong reasons for regarding this second example as spurious. We are back on safer ground with regard to the situation where a piece of land was sold for a certain figure, plus the possible profit made by a resale:
"Si quis ita emerit: 'est mihi fundus emptus centum ct quanto pluris eum vendidero', valet venditio...: habct enim certum pretium centum, augebitur autem pretium, si pluris emptor fundum vendiderit.""^y
This contract is valid, the price being centum and hence certum. The possible future payment is merely a subsidiary duty, also enforceable with the actio venditi, but not rendering the price uncertain. It has been suggested that transactions of this type are impractical: the vendor cannot hope to derive any advantage from a term such as this, since the purchaser has no incentive to make a profit.^[1299] But one has only to change the example slightly ("one hundred plus half of what I can (re)sell it for") in order to meet this objection.^[1300]
(b) Determination of the price at a later stage
The "certainty of price" requirement was primarily intended to help ensure that in its essential elements the bargain was the work of the parties. Secondly, however, the Roman lawyers seem to have wanted to ensure that the bargain was in actual fact struck; they tried to avoid recognizing a contract of sale where a breakdown of the transaction was still possible due to the fact that in the end a price might either be lacking or be unascertainable. Hence their reluctance to accept an arrangement by the parties "ut quanti Titius rem aestimaverit, tanti sit empta".^[1301] The possibility existed that Titius did not want to or could not fix a price. Opinions «were divided in classical law,^[1302] for there may, of course, be good reasons why the parties do not want to determine the price themselves, but would rather leave that to an (impartial) third party.
Justinian settled the dispute by construing the clause as a (suspensive) condition: if the third party names a price, the sale becomes effective; otherwise the transaction is void for lack of price.^[1303] ^{^[1304]} This solution implied, however, that the sale did not already come into existence at the time of its conclusion. A different view was taken if the price had to be fixed, not by a third party, but by the purchaser. This was unacceptable in Roman law: "Illud constat imperfectum esse negotium, cum emere volenti sic venditor dicit: 'quanti velis, quanti aequum putaveris, quanti aestimaveris, habebis emptum'.^1,125 The problem here was not so much that the purchaser might in the end not fix a price at all—it was rather that the vendor would have had an interest in the failure of this disadvantageous arrangement. The main objection of the Roman lawyers was probably that the determination of an essentiale negotii had been left to one party and that thus the institutional check against the danger of gross and unreasonable contractual imbalance (namely negotiation about the price) had been removed. Other ways and means of seeing to it that the purchaser did not abuse his power were not available. More particularly, as we shall presently see, judicial control concerning fairness of price was not the policy of Roman law. Modern legal systems tend to take a more liberal view with regard to the two last-mentioned problem areas. The German Code allows determination of the performance by a third party;^[1305] if the third party cannot or will not make the determination, or if he delays it, either his declaration is substituted by court decision^[1306] or the contract is void.^[1307] The determination of the price may, however, even be left to one of the contracting parties, be it that he has to decide "in an equitable manner" or even in his free discretion.^[1308] This represents a deviation from Roman law which is based on pandectist doctrine.^[1309] Finally, even an agreement to pay a fair and reasonable price is not regarded as too uncertain.^[1310] South African law is still more firmly wedded to Roman law,^[1311] even though Roman-Dutch practice may have been less cautious: attention has recently been drawn to a decision of the Hooge Raad of 1719, where the Court was actually prepared to determine the price bom viri arbitratu.¹³³
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Pretium certum

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