Reception and rejection of periculum est emptoris

If the reception and continued application of a Roman rule in later phases of legal history provides some indication of its soundness, the record of periculum est emptoris is not at all dismal.¹²¹¹ True it is that both the writers and the legislators of the law⁷ of the Age of Reason were hostile to it.^[1487] So were the fathers of the BGB.^[1488] They did not see a rational justification for the rule and considered it to be in conflict with the nature and equity of the bilateral contract of sale.

In the South African variant of the ins commune it still applies today.^[1491] That is all the more remarkable, as periculum emptoris is no longer restricted to cases of vis maior, but refers to instances of accidental destruction or deterioration at large. Justinian, it will be remembered, abolished the concept of custodia liability, replacing it with culpa (in custodiendo).^[1492] In the present context this had the effect of a not inconsiderable extension of the risk rule. The French code civil retains "emptione perfecta periculum est emptoris" too; however, it makes not only the passing of the risk but also the transfer of ownership dependent upon the conclusion of the contract of sale.^[1493] Like the BOB, therefore, it tries to reconcile the passing of the risk with the overriding principle ot res pent domino; but whereas the one code brings about this reconciliation on the level of the contract of sale, the other one detaches both transfer of ownership and passing of risk from the obligatory contract.

English law is very similar to French: the purchaser becomes owner with the conclusion of the contract ot sale,^[1494]* at the same time, the passing of the risk takes place.^[1495] As far as this latter consequence is concerned, the position is therefore not different to that in Roman law, and Lord Ellenborough, to mention but one example, might just as well have applied emptione perfecta periculum est emptoris when he said in the case ofRttgg v.

”... and therefore according to the case of.. every thing having been done by the sellers, which lay upon them to perform, in order to put the goods in a deliverable state in the place trom whence they were to be taken by the buyers, the goods remained there at the risk ot the latter. But with respect to the other ten casks [sc: of turpentine], as the tilling them up according to the contract remained to be done by the sellers, the property did not pass to the buyers, and therefore they are not bound to pay for them.”