Roman-Dutch and modern German law
Of all modern systems, not surprisingly, South African law follows Roman law most closely.[1549] It is squarely based on the Roman-Dutch branch of the ius commune[1550] [1551] [1552] [1553] [1554] [1555] [1556] and the courts have, on that basis, usually done no more than to work out the details of the respective duties incumbent on the parties. Denuntiatio litis,60 contrary to the practice in the olden days,61 no longer has to be accompanied by a copy of the summons;62 to give the vendor informal notice of the proceedings instituted by the third party is sufficient. On the other hand, such a notice to the auctor does not entitle the person threatened with eviction to rest on his laurels and throw all responsibility upon the vendor;63 he has to put up a virilis defensio,64 i.e. to conduct his case as a reasonable litigant.65 South African law follows Roman and Roman-Dutch law even to the point that the vendor merely has to afford vacua possessio and is thus not under an obligation to make the purchaser owner of the object sold.[1557] This idiosyncrasy of Roman law, faithfully preserved also in the European ius commune down to the time of the pandectists,[1558] has been abandoned in the modern codes. They usually require the vendor, under the contract of sale, to transfer ownership.[1559] That has not hindered them, however, from making the vendor's liability still dependent upon eviction: "If a movable[1560] has been sold and delivered to the purchaser for the purpose of transferring ownership, the purchaser may not demand compensation for nonperformance on account of the right of a third party involving the possession of the thing, unless he has delivered the thing to the third party in consideration of his right",[1561] as the German BGB puts it.[1562] The underlying policy is that the purchaser must not be allowed to claim damages and still have the thing sold at his disposal; hence this deviation from the normal rules of breach of contract. It is no longer necessary for the purchaser to defend an action brought by the third party; he can claim compensation for nonperformance, even where he has voluntarily surrendered the object to him who claimed to have a better title, provided only that such surrender is not in conflict with the requirements of good faith.[1563]
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- PART V Roman Law and the Modern World
- The Roman law of things (ius rerum) or, in contemporary terms, ‘property’, covered a muchbroader field than that encompassed by the modern law of property.